United States: USDOT Seeks To Remove "Speedbumps" For Transportation Infrastructure Projects, Opens A Revamped Grant Program To Accelerate Public-Private Infrastructure Investment

President Trump recently debuted his "Plan to Rebuild America's Infrastructure," which describes his vision for overhauling the nation's infrastructure.  Although details of the plan have yet to be announced, two important components of the plan—decreasing permitting timelines and increasing funding opportunities—have begun to take shape.

USDOT requests input on "unnecessary obstacles to transportation infrastructure projects" by July 24.

First, the U.S. Department of Transportation (USDOT) announced that it is reviewing existing regulations, policy statements, and guidance documents to identify "unnecessary obstacles to transportation infrastructure projects."  As part of its review, USDOT has requested stakeholders and the public to identify requirements that should be removed or revised.  USDOT is particularly interested in public input on which rules and regulations "unjustifiably delay or prevent completion of surface, maritime, and aviation transportation infrastructure projects."  While the agency indicated that it is most interested in hearing proposals for administrative changes, it also has invited recommendations for legislative changes "if non-statutory changes are insufficient to address a specific obstacle to transportation infrastructure projects."

Interested stakeholders must submit comments to USDOT by July 24, 2017.

USDOT has opened the Infrastructure for Rebuilding America grant program.

Second, the USDOT announced that the Infrastructure for Rebuilding America (INFRA) discretionary grant program through a Notice of Funding published in the Federal Register on July 5.  The INFRA grant program revamps the existing FASTLANE grant program to focus on projects that use funding from the private sector or other non-federal sources, as well as projects that address rural infrastructure needs.  Accordingly, approximately $1.5 billion will be available to eligible projects, including both small and large highway and freight infrastructure projects.  In the "large project" category, the INFRA grant must be for at least $25 million.  In the "small project" category, the grant must for be at least $5 million.  INFRA funds can be used for a range of purposes, including reconstruction, rehabilitation, property acquisition, environmental mitigation, construction contingencies, equipment acquisition, and operational improvements.

Applications for INFRA funding must be submitted by 8:00 p.m. ET November 2, 2017.  Applications must include the Standard Form 424 (Application for Federal Assistance), Standard Form 424C (Budget Information for Construction Programs), a cover page, and a Project Narrative, as detailed in the July 5 Notice of Funding published in the Federal Register.  Among other issues, the Project Narrative must address how the project aligns with four "merit criteria," including how the project:

(1) Supports national or regional economic vitality;

(2) Leverages federal funding with non-federal contributions;

(3) Includes or enables innovation in environmental review and permitting, the use of experimental project delivery authorities, and safety and technology; and

(4) Advances performance and accountability for meeting the INFRA program's goals.

In addition to providing for funding, the INFRA program builds upon recent efforts, including the FAST Act, to expedite environmental review of transportation projects.  The INFRA program aims to facilitate coordination between federal agencies and increase accountability for meeting permitting timelines by identifying "liaisons" within each relevant federal agency.  The liaisons "will coordinate activity to reduce risks, and will have specific responsibilities (e.g., dispute resolution) that are triggered when a project is at risk for missing a permit deadline."

These developments indicate the Trump Administration's interest in tapping into private funds and participation through private-public partnerships and the Administration's desire to accelerate review and approval of large-scale infrastructure projects and getting them underway quickly.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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