Infra Insight Blog

The National Environmental Policy Act (NEPA), the California Environmental Quality Act (CEQA) and other environmental laws can create significant legal risks for the delivery of complex infrastructure projects using alternative procurement strategies. On October 10, 2024, I had the pleasure of collaborating with my Nossaman colleague Rob Thornton, along with guest speaker Tim Suydam from the East County Advanced Water Joint Powers Authority, to discuss … 

Imagine you are sitting in your car at a traffic signal. The signal turns green and you begin to accelerate. Without you doing anything, your car suddenly screeches to a halt as another car runs a red light and whizzes past. Your car, equipped with sensors and an array of wireless connections, was able to communicate with other vehicles and the surrounding infrastructure to avoid collision. If your car had not stopped, you would have been involved in a serious accident. According to a recent plan released by the U.S. Department of Transportation (USDOT), this is exactly the type of ...

On September 23, 2024, the United States District Court for the Eastern District of Kentucky issued an Opinion and Order in Mid-America Milling Co., LLC, et al., v. U.S. Department of Transportation, et. al., No. 3:23-CV-00072-GFVT, 2024 WL 4267183 (E.D. Ky. Sept. 23, 2024), granting a preliminary injunction on the basis that the race- and gender-based rebuttable presumptions used in the U.S. Department of Transportation (USDOT) Disadvantaged Business Enterprise (DBE) program violates the United States Constitution’s guarantee of equal protection under the Fourteenth Amendment. ... 

Through recent updates to California’s Public Contract Code, public agencies are being equipped with new tools to deliver major infrastructure projects through use of the progressive design-build (PDB) model. As more public agencies gain access to the legislative tools available to use PDB, we expect to see an increasing number of water projects undertaken and completed successfully under the PDB or other early contractor delivery methods.

In Nossaman’s California Water Views – 2024 Outlook, I examine the differences between PDB and fixed-price design-build (DB ...

After months of unusually heavy rainfall from California’s atmospheric rivers in the beginning of 2024, many projects found themselves facing delays, additional costs and setbacks due to the wet weather. In determining who is responsible for those delays, costs or setbacks, the first thing to look for in a contract are provisions on Force Majeure. Some parties may be surprised by what their contract says on Force Majeure and what risk they assumed for bad weather. … 

Insurance on a project is a vital tool with which to manage project risk. In a warming world with ever larger and more complex projects, insurance becomes that much more important to ensure that projects can stay on track after an accident or other insurable event.

Join Jim Vorhis and me on May 30th for the next webinar in our Infra Insight webinar series focused on navigating risks and adapting insurance to align with evolving methods of project delivery. We are excited to welcome our guest panelists, Michael Earp and Tariq Taherbhai from Aon Construction & Infrastructure. … 

The U.S. Department of Transportation (USDOT) recently announced a long-awaited Notice of Funding Opportunity (NOFO) for public agencies to enhance technical capacity to deliver projects using a public-private partnership (P3) model. Authorized by the Infrastructure Investment and Jobs Act (P.L. 117-58; also known as the IIJA), $57.72 million is available through the Innovative Finance and Asset Concessions Grant Program (Program) for public agencies to hire technical, financial and legal experts (either on staff or as consultants) to support the evaluation and delivery ...

While the Build America Buy America Act aims to promote domestic manufacturing and support American industries, it also presents several challenges. Addressing these challenges requires a balanced approach that balances the Act's objectives with the practical considerations of project management, supply chain dynamics and international trade relations. Join us on March 19th as we discuss these issues and more with Al Caldarelli, Managing Counsel, Commercial Transactions for Massachusetts Department of Transportation and Teddy Low, Senior Deputy County Counsel for Los ...

On January 17, 1994, a 6.7 magnitude earthquake struck Northridge, California, resulting in thousands of casualties and approximately $60 billion in damages and economic loss. Hospitals within the impacted area suffered severe structural damage and many became inoperable. Recognizing the insufficiency of the existing seismic safety standards for hospitals, the state of California signed Senate Bill 1953 (SB 1953) into law in September 1994.

SB 1953, also known as the Hospital Seismic Retrofit Program, established the following deadlines by which all California general ...

When an infrastructure project takes the first steps from vague idea towards becoming a reality, public owners must make countless decisions on how to advance the project. One decision of particular importance is the selection of the project delivery method, which has significant impacts on the project’s timeline and budget. While many owners are familiar with a variety of project delivery methods, including alternative delivery methods such as design-build, construction manager-at-risk and public-private partnerships, knowing when to choose one option over another can ...

To mitigate the effects of climate change and years of drought, California plans to double the amount of recycled water produced in the state by 2040 – but is producing more water enough? There’s a rising trend of building energy recovery facilities in wastewater facilities to reduce the reliance on existing utility providers and powering the plant with biogas generated from sludge processing and co-digestion of organic waste diverted from landfills.  … 

A decades-long battle over a proposed desalination plant generated considerable attention for desalination. Despite the defeat of the Poseidon plant in Huntington Beach, CA, the California Coastal Commission has approved multiple plants since. As a result, substantial questions remain about desalination’s role in California’s water future. In “The Future of Desalination, Post-Poseidon,” we analyze the most significant barriers and opportunities for desalination to help California overcome its future water shortage issues due to population growth and climate ...

Federal prevailing wage law, known as the Davis-Bacon Act and Related Acts (Davis-Bacon Act), is applicable to almost every federal and federal-aid project.  The rules governing the Davis-Bacon Act have been essentially unchanged for 40 years.  But now, for the first time since the Reagan administration, the U.S. Department of Labor (Department) is updating the Davis-Bacon Act and making a number of significant changes to how the Davis-Bacon Act is administered ...

The first urban-core tolling program in the United States marked a major milestone. In late June, the Federal Highway Administration (FHWA) concluded its environmental assessment of the Metropolitan Transportation Authority’s (MTA) Central Business District (CBD) Tolling Program and issued a Finding of No Significant Impact (FONSI). This federal determination will allow the program to move forward into implementation. ... 

Last month, through the annual process known as the “May Revise,” California Governor Gavin Newsom released an update to the 2023-24 state budget proposal that he first introduced in January. The updated budget proposal sets forth a $306.5 billion spending plan that seeks to tackle the state’s growing budget deficit while maintaining key investments in education, healthcare, housing, climate and infrastructure.

Regarding infrastructure, the Governor noted that, due to unprecedented local, state, and federal investments, the state will spend more than $180 billion ...

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. ... 

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. ...

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...

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.”...

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 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. ...

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: ...

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. ...

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. ...

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: ...

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. ...

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: ...

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. ...

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. ...

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 ...