FHWA Guidance on Implementing Infrastructure Law Funding Does Not Bode Well for New Capacity Projects | Locke Lord LLP

Following the passage of Law on investment in infrastructure and employment (“IIJA”) in November 2021, there was a wave of optimism about the new funding and how it could help support various types of projects. What was missing was definitive guidance on how the availability of these funds would be prioritized among the different types of projects. With the release of a Federal Highway Administration (“FHWA”) Policy Note December 16, 2021 (“FHWA Policy Memo”) some of these directions have started to emerge, and it is clear that new and expanded capacity projects will not be viewed very favorably in light of other identified priorities.

Recall that the IIJA (also called the “bipartite law on infrastructure”) has funded a myriad of categories of projects (see the list at the end of this article). While the headlines referred to the IIJA as providing $ 1.2 trillion in available funding, it’s important to note that only $ 550 billion constitutes “new” funding. The remaining funds are a $ 650 billion reauthorization to continue programs previously authorized under “Fixing America’s Surface Transportation” (“FAST”) and other prior surface transportation bills. Nonetheless, there was reason to be optimistic about $ 550 billion (over five years) in additional funding for projects of various types.

The FHWA Policy Note identifies policy objectives that will guide how funds will be prioritized. The guidance notes that projects that “align” with the IIJA include those that improve the condition and safety of roads, make streets and other means of transport accessible to all users and comply with the Law on Roads. Americans with Disabilities address the issue of the environment. impacts, including stormwater runoff and greenhouse gas emissions, prioritize infrastructure that is less vulnerable and more resilient to climate change, advance emerging technologies such as electric vehicle charging stations and power generation renewable energy, promote the deployment of broadband in transport rights. pathway, and which reconnects communities and reflects the inclusion of disadvantaged and under-represented groups in the planning, design and selection process of the project.

New capacity projects

Regarding new capacity projects, the FHWA policy note provides that projects that move people and goods by “modernizing and increasing the operational efficiency of existing roads and highways” will be given priority over projects. “Which increase general-purpose capacity.” roads and highways. Further developing this concept, the FHWA Policy Memo states (emphasis added):

In accordance with this policy, the FHWA will implement policies and take actions to encourage and, where permitted by law, require recipients of federal highway funding to select projects that improve the condition and safety of infrastructure. existing transport routes in the front advance projects that add new general-purpose travel lanes serving single-occupancy vehicles.

Enforcement of this policy does not prohibit the construction of new general purpose capacity on highways or bridges, but in most cases federal aid highways and federal lands the funding resources made available through the [IIJA] should be used to repair and maintain existing transportation infrastructure before making new investments in highway expansion for additional general purpose capacity.

Additionally, in the context of setting policy goals for the new capability, the FHWA policy note suggests the suggestion that state transportation departments (“state DOTs”) should “be aware of their ability to transfer resources to support public transit. projects that could be more consistent with these priorities. It will be worth considering the receptivity of such a suggestion, because while the transfer of resources to support transit projects may be in line with current FHWA priorities, it has historically not been the priority. many state DOTs.

Environmental review process

The policy and preference for non-new and increased capacity projects is more reflected in the comments made on the environmental review process for roads and highways. The FHWA policy note notes that many types of projects to prioritize will generally meet the FHWA and Environmental Quality Council criteria for categorical exclusions (“CE”), while those that require “more”. that a minor amount of the right-of-way or that would result in residential or non-residential movement ”cannot be classified as CEs. Recognizing this difference and that a more involved NEPA process will take longer than a CE, the note says metropolitan planning organizations, state DOTs and other decision makers will be “encouraged” to consider the delivery schedule. projects because they are programming funds made available within the framework of the IIJA. In other words, new and expanded capacity projects, which by their very nature require more extensive (and lengthy) environmental reviews, are not among those that federal policy will encourage to be considered. by the state and local decision-making. -makers.

Future implementation of FHWA policy objectives

The extent to which the FHWA intends to pursue the policy objectives set out in the FHWA Policy Note is reflected in the description of planned future actions. The memo refers to the adoption and implementation of laws and regulations, including the issuance of guidance for “legacy” programs affected by IIJA. Presumably, this could change the criteria of existing programs such as the Transport Infrastructure Funding and Innovation Act (“TIFIA”) which has helped support a number of large new and expanded capacity projects. In addition, the FHWA seeks input from stakeholders on the implementation of the IIJA through a request for information, published in the Federal Register on December 1, 2021.

Impacts on Texas

While there is clearly funding to be made available for transit and other beneficial projects, the broad policy set out in the FHWA policy brief will not be good news for many communities in Texas. To be clear, the overall Texas transportation funding gap includes the need for both new capacity and the need to maintain existing infrastructure, and to prioritize the use of IIJA funding for repair, rehabilitation, reconstruction, replacement and maintenance. existing transportation infrastructure will help meet these needs in Texas. However, Texas continues to be the fastest growing state in the country, and despite the increase in state funding over the past decade, it continues to run out of billions of dollars each year for meet the global need for pavements. Many communities are grappling with the need to reduce congestion, including on critical corridors for this state and national economies. Those hoping that the IIJA could resolve the lack of funding for new capacity may need to continue to seek other sources of funding rather than relying on the hoped-for support of the IIJA.

Funding Categories of the Infrastructure Investment and Employment Law

  • $ 110 billion for repair, replacement and reconstruction of roads and bridges (main focus on bridges)
  • $ 66 billion for Amtrak’s deferred maintenance, rail improvements in the Northeast Corridor, and improved rail service and safety in other parts of the country
  • $ 73 billion to protect and improve the power grid, upgrade and modernize power lines, prevent power grid hacking, and support clean energy
  • $ 65 billion for states to implement increased broadband deployment, especially in rural areas and low-income communities
  • $ 55 billion for lead sanitation and pipe replacement, chemical cleaning and clean drinking water in tribal nations and underprivileged communities
  • $ 50 billion to tackle floods, wildfires, coastal erosion and droughts, funding also provided for cybersecurity and critical infrastructure protection
  • $ 39 billion for public transit, including reducing repair backlogs, creating new bus lines and improving accessibility for the elderly and people with disabilities
  • $ 25 billion for the modernization and expansion of U.S. airports, including runways, boarding gates, taxiways, control towers, control systems, terminals and concessions
  • $ 21 billion to clean up Superfund sites and brownfields, reclaim abandoned mining lands, and cover old and abandoned oil and gas wells
  • $ 17 billion for port and waterway infrastructure, including coastal infrastructure, inland waterway improvements and land ports of entry
  • $ 11 billion for freeway and pedestrian safety, including investments in Safe Street programs
  • $ 7.5 billion to build a national network of electric vehicle charging stations
  • $ 7.5 billion for electric school buses, mainly in low-income, rural and tribal communities
  • $ 1 billion to reconnect communities


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