Infra Insight Blog

In an effort to promote project flexibility, funding innovation, efficiencies and timely implementation, this week the Federal Transit Administration (FTA) released its final rule regarding P3s (and other private involvement) in public transportation projects.

The primary goal of FTA’s Private Investment Project Procedures (or PIPP), new 49 C.F.R. Part 650, is to identify and address FTA requirements that are impediments to the greater use of public-private partnerships and private investment in public transportation capital projects, while protecting the public ...

Hopes that the Congress would pass S. 1647, the Developing a Reliable and Innovative Vision for the Economy Act (DRIVE Act),  a six-year, $478 billion transportation funding reauthorization bill before the August recess have, like so many times before, come to naught.  Instead we get a three month extension of the current transportation funding and authorization law, MAP-21, that will provide $8 billion to allow current project funding and implementation to continue.

The three-month extension, H.R. 3236, the Surface Transportation and Veterans Health Care Choice Improvement ...

The FHWA published its final Core Toll Concessions P3 Model Contract Guide (Guide) on September 10, 2014 as part of its mandate under MAP-21 to develop standard public-private partnership transaction model contracts for the most popular types of public-private partnerships.  The Guide serves as an educational tool to assist states, public transportation agencies, and other public officials in developing their own public-private partnership agreements. 

The FHWA determined an educational approach is preferred to prescriptive requirements based on feedback received during a ...

On Friday, September 5, 2014, the Federal Highway Administration (FHWA) published its final rule for Value Engineering (VE) for road and bridge projects.  The new rule implements changes made to VE requirements under Moving Ahead for Progress in the 21st Century (MAP-21), the last surface transportation authorization law that was signed into law in July 2012.

The FHWA’s final rule for VE increases the project thresholds that trigger a VE analysis, eliminates the VE analysis requirement for design-build projects, and defines the requirements for a state Department of ...

Congress passed a bill (HR 5021) to provide a short-term funding patch for the Highway Trust Fund (HTF), just one day before the United States Department of Transportation was scheduled to begin slowing reimbursements to states for eligible highway, bridge, and mass transit projects.  A failure to act by Congress had the potential to slow-down or stop any number of transportation construction projects across the country in the midst of the construction season.

After volleying the bill back and forth between the chambers over the course of this week, Congress passed a final bill that ...

The American Public Transportation Association (APTA) held its Rail Conference on June 15 through 18, 2014, in Montréal, QC.  In addition to the technical sessions for which APTA is well-known, a main theme of the Rail Conference was the nexus between transit and economic development.  The shift in themes demonstrates transit organizations’ changing philosophy from building and operating transit infrastructure to also catalyzing transit-oriented communities.  Much of the focus on transit and economic development relates to joint development and Transit-Oriented ...

Posted by guest blogger William Moore.

William Moore of Vianovo works with the Transportation Transformation Group, a consortia of public and private entities that looks at ways of improving the funding and financing of the nation's transportation infrastructure, which is co-chaired by Nossaman Partner Geoffrey Yarema.

The bipartisan leadership of the Senate Environment and Public Works Committee unveiled a six-year surface transportation bill last night that would maintain current funding under MAP-21 legislation expiring in September, plus inflation. Every state would ...

On April 29, 2014, President Obama delivered a draft of "Generating Renewal, Opportunity, and Work with Accelerated Mobility, Efficiency, and Rebuilding of Infrastructure and Communities throughout America" or "GROW AMERICA" Act to Congress, promised as his administration’s proposed multi-year surface transportation reauthorization.  This is the first surface transportation authorization proposal to be released, and the House and Senate proposals are likely to be more conservative.

The GROW AMERICA Act proposes to replenish the shortfall in the Highway Trust Fund ...

In our prior posts we noted the important changes in federal tolling law under MAP-21 and some of the issues raised by those changes.  MAP-21 modestly loosened the federal reins on tolling the nation’s Interstates and federal-aid highways.  The Obama Administration just released its federal surface transportation reauthorization legislation, the Grow America Act.  In section 1405, the Administration proposes further constructive steps to expand tolling rights, but reintroduces some constraints that MAP-21 relaxed.

Probably the most important proposal is to create the right ...

On February 26, President Obama announced a proposal to fund a four year surface transportation bill that would increase spending by 22% for highways and 70% for transit over current levels.  The White House provided a Fact Sheet that outlines to proposal.   The current law, the Moving Ahead for Progress in the 21st Century Act (MAP-21) expires at the end of September.  That means that a new bill or an extension must be agreed to by both Houses of Congress by that time.  The President's envisions a $302 billion four year bill that builds on the substantive provisions of MAP-21.  More ...

On July 6, 2012 President Obama signed into law MAP-21, which, among other things, contained new National Environmental Policy Act ("NEPA") requirements for the Federal Transit Administration ("FTA") and Federal Highway Administration ("FHWA").  In January 2014, pursuant to a mandate in MAP-21, FTA and FHWA adopted new regulations, which became effective this week on February 12, governing the implementation of two new categorical exclusions. The two new categorical exclusions apply to (1) projects within an existing right-of-way, and (2) projects receiving limited Federal ...

We are now a short distance away from expiration of MAP-21, with no solution in sight for sources of funding to sustain the federal highway program.  There is no stomach in Congress to increase federal gas taxes or to make real progress toward replacing gas taxes with mileage-based user fees.

As for tolls, Rep. Bill Shuster, Chair of the House Transportation and Infrastructure Committee, said in a speech last week that they might be even more difficult to do than some of the user fees."  Tolling of interstates that have been free for decades would not be kindly received by voters, according to ...

Showing concern for the TIFIA JPO’s slow pace of credit approvals for major US transportation, on July 24, 2013, the Senate Committee on Environment and Public Works conducted an oversight hearing on the implementation of the TIFIA Program following MAP 21’s expansion of the program almost a year ago.  We are aware of only one project that has received credit approval in that time frame.

Geoff Yarema, a partner in the Infrastructure Practice Group and a member of the National Surface Transportation Infrastructure Financing Commission, provided testimony today at the hearing.

In ...

In addition to taking testimony from public agency project sponsors and industry leaders during the July 24, 2013 oversight hearing on TIFIA conducted by the Senate Committee on Environment and Public Works, the Committee heard from the Secretary of Transportation, Anthony Foxx, regarding the U.S. Department of Transportation’s (USDOT) implementation of the TIFIA Program since the July 6, 2012 enactment of MAP-21. 

While touting the overall success of the TIFIA program and detailing USDOT’s efforts to move projects through the TIFIA pipeline, Secretary Foxx also announced ...

In other TIFIA news . . .  

Yesterday, the TIFIA Program Office released updated TIFIA program guidance and loan document templates that purport to reflect the July 6, 2012 enactment of MAP-21.  Among other revisions, the TIFIA Program Guide has been updated to reflect MAP-21’s endorsement of a rolling application process and the imposition of specific statutory deadlines on processing applications.

While the updated TIFIA guidance documents offer welcome support to current and prospective TIFIA applicants, there appears to be at least some additional work to be done to update the ...

As we have previously reported, the Federal Highway Administration (FHWA) has issued guidance holding that "Buy America applies to any utility work that is accomplished as a result of a Federal-aid highway project", unless the utility work cannot legally be reimbursed by the State.  This conclusion is based on an amendment to Buy America found in Section 1518 of MAP-21, which requires the application of Buy America to all contracts eligible for assistance within the scope of a project (as defined by the NEPA document), if at least one contract for the project is funded with Federal-aid ...

On January 14, 2013, the Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) issued guidance on Section 1319 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, July 6, 2012.  MAP-21 is a measure that reauthorizes transportation funding through the end of 2014, and is the product of a robust effort by transportation advocates to streamline the lengthy, complex, and cumbersome federal environmental process.  As we reported here, MAP-21 includes several meaningful reforms that could expedite the National Environmental ...

The Federal Highway Administration (FHWA) released two guidance memoranda in December 2012 relating to Buy America, largely in light of the amendments made by MAP-21.  On December 20, FHWA clarified the Buy America requirements applicable to utility work on Federal-aid projects.  The December 21 memorandum provided additional amplification on FHWA’s position regarding Buy America requirements applicable to manufactured products.

FHWA’s December 20, 2012 Guidance

FHWA was in the process of evaluating the applicability of Buy America requirements to utility work on ...

As part of its effort to meet MAP-21’s legislative requirement to develop standard public-private partnership transaction model contracts for the most popular types of public-private partnerships, the Federal Highway Administration held a listening session with representatives from the transportation industry at the U.S. Department of Transportation in Washington D.C. on January 16.  Representatives from state departments of transportation, general contractors, trade associations, legal advisors and others were in attendance, and solicited to provide FHWA with the ...

On October 10 through 12, the American Road & Transportation Builders Association (ARTBA) held their 24th Annual Public-Private Partnerships in Transportation Conference in Washington, DC.  Each year during this conference, the ARTBA P3 Division honors two individuals, one public sector and one private sector, for their exemplary contributions to the transportation industry. 

This year we are proud to announce that Nossaman's Geoff Yarema was named "P3 Private Sector Entrepreneur of the Year."  Geoff is the first two-time recipient of this award, having received the award in ...

The Federal Highway Administration (FHWA) recently issued guidance for implementing various aspects of the Moving Ahead for Progress in the 21st Century Act (MAP-21), including:  Infrastructure; Environment, Planning and Realty; Safety; Operations; and Innovative Program Delivery.  The guidance became effective October 1, 2012.

The interim guidance on Innovative Program Delivery includes provisions for implementing the new public-private partnership (P3) assessment requirement for Major Project Finance Plans under MAP-21.  The new P3 assessment requirement is, in our ...

On September 24 the Federal Highway Administration issued policy guidance on various aspects of MAP-21, including a memorandum to its Division Administrators on the tolling provisions in MAP-21 and questions and answers on federal tolling laws.

The tolling guidance addresses (1) the complete replacement of the prior statutory language of 23 U.S.C. 129(a), (2) the application of the existing HOV/HOT lane provisions in 23 U.SC 166, and (3) the status of the four existing toll pilot programs.  It is a must-read for anyone concerned with federal tolling law and policy.

Sections 129 and ...

Last night the Knik Arm Bridge and Toll Authority, responsible for development of the $750 million Knik Arm Crossing project in the Anchorage, Alaska region, filed a letter of interest with the USDOT for TIFIA credit assistance.  It is one of the first, if not the first, letters of interest filed under the USDOT’s July 27 Notice of Funding Availability implementing the MAP-21 amendments to TIFIA.

KABATA filed a letter of interest in November 2011 for a $308 million TIFIA loan.  With the changes in MAP-21 authorizing TIFIA credit assistance up to 49% of eligible project costs and ...

The Moving Ahead for Progress in the 21st Century Act (MAP-21) contains meaningful reforms that collectively represent a significant improvement in federal surface transportation law.  For the most part, federal law directly on the subject of public-private partnerships saw little change of significance.  Other federal laws, though not directly addressing PPPs, also affect the viability as a project financing mechanism.  Changes to the TIFIA program and to federal tolling law that will markedly improve project finance via public-private partnerships were addressed in our ...

MAP-21 contains meaningful reforms that collectively represent a significant improvement in federal surface transportation law. Join our panel, including key house staff members critical to MAP-21, for a 90-minute discussion on selected aspects of the Act and listen as they address the effects it will have on the transportation industry.

Congress recently passed MAP-21 and under prior law, with few exceptions, tolling was prohibited on Interstate highways and many other federal-aid highways. The bill expands the exceptions, in recognition of the fact that federal fuel tax revenues are stagnant and new revenue sources are imperative to meet the growing funding gap in surface transportation.

MAP-21, a measure to reauthorize transportation funding through the end of 2014, is the product of a robust effort by transportation advocates to streamline the lengthy, complex, and cumbersome federal environmental process.

On June 29, 2012 Congress passed the Moving Ahead for Progress in the 21st Century Act (MAP-21), a compromise measure to reauthorize transportation funding through the end of 2014.  A bipartisan and bicameral measure, MAP-21 contains meaningful reforms that, although marred by some missed opportunities, collectively represent a significant improvement in federal surface transportation law.

We foresee continued heavy demand for TIFIA credit assistance, particularly given the more attractive features of the reenacted TIFIA program.  We have some concern that the combination ...

Representatives from a coalition of Departments of Transportation (DOTs) across the United States have joined to send a letter to Speaker of the House of Representatives John Boehner  to oppose inclusion into the House's surface transportation reauthorization bill two amendments, introduced by Senator Bingaman, to the recently passed S. 1813, entitled Moving Ahead for Progress in the 21st Century (MAP-21). The DOTs that signed the letter include Arizona, Pennsylvania, Florida, North Carolina, Indiana, Texas, Kansas, Virginia, and Ohio.
 
The DOTs say the two ...

Moving Ahead for Progress in the 21st Century (MAP-21), the draft reauthorization bill unanimously voted out of the Senate Environment and Public Works Committee, contains major improvements to the TIFIA program that many, including those of us at Nossaman, have been advocating.  These changes, if enacted, will greatly expand availability and eliminate much of the uncertainty over whether a project will be selected.

• The bill eliminates virtually ALL of the selection criteria, converting availability from a discretionary competitive selection process to a simple objective ...