Administration Issues “Legislative Outline for Rebuilding Infrastructure in America”

by Pillsbury - Gravel2Gavel Construction & Real Estate Law

Recently, the Trump Administration released a 53-page Legislative Outline for Rebuilding Infrastructure in America of legislative proposals to rebuild American infrastructure, which it defines as surface transportation, airports, passenger rail, ports and waterways, flood control, water supply, hydropower, water resources drinking water and waste water facilities, storm water facilities, and surprisingly, Brownfield and Superfund sites. Infrastructure projects can be located in both urban and rural areas.

The proposal lists specific laws that will require amendments, and would make available billions of dollars in federal funds to trigger the process. This is a brief review of its many provisions.

Part I, entitled “Funding and Financing Infrastructure Improvements” is divided into these subsections:

  • Infrastructure Incentives Program;
  • Rural Infrastructure Program;
  • Transformative Projects Program;
  • Infrastructure Financing Programs;
  • Public Lands Infrastructure;
  • Disposition of Federal Real Property; and
  • Federal Capital Financing Fund.

Here are some highlights. State and local governments would receive “incentive grants.” and federal incentive funds will be conditioned on meeting milestones on a scheduled basis. $100 billion will be made available, and would be administered mainly by the Department of Transportation (DOT), the Army Corps of Engineers (Corps), and the Environmental Protection Agency (EPA).

Other federal departments and agencies will be able to petition for inclusion of their recommended projects. Some of these funds would be set aside for administrative purposes. Each lead federal agency will solicit applications as soon as possible.

A separate rural infrastructure program would be established to generate significant investment to address ”long-unmet needs.” $50B would be provided, and 80% would be allocated to the Governor of each affected state. In addition, tribes and territories would be included in the program.

The Department of Commerce would be in charge of “transformative projects” that will fundamentally advance and transform the way in which infrastructure is delivered.

There will be new infrastructure financing programs that will increase the capacity of existing federal credit programs and broaden the use of “Private Activity Bonds.” The Water Infrastructure Financing and Innovation Act (WIFIA) would be expanded and program eligibility would be broadened. For instance, EPA would be authorized to assist in the financing of all kinds of water improvement and flood mitigation projects, and water quality issues at Brownfields and some the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) sites would be eligible for the existing WIFIA program.

Under the Public Lands Infrastructure program, the additional revenues generated by energy production on federal lands would be used for capital and maintenance needs. In addition, the disposition of Federal real property would be streamlined; today, the “Government is largely unable to tap into the value of the [Federal lands]portfolio because of statutory limitations.” A Federal Capital Financing Fund would be established to enhance the federal property acquisition process.

Part 2, entitled simply, “Additional Provisions for Infrastructure Improvements” addresses Transportation, and the need to incentivize and remove barriers to the development and improvement of the nation’s transportation infrastructure—highways, public transit, rail, and airports. There are suggestions to streamline the National Environmental Policy Act (NEPA) review process in connection with highway construction, and provide small highway projects with some form of regulatory relief.

Rail projects would be able to take advantage of the Fixing America’s Surface Transportation (FAST) Act’s accelerated review process, and many non-aviation developments at airports would be subject to only limited FAA review and supervision.

With respect to Water Infrastructure, the Clean Water Act (CWA) Revolving Fund should be available for both publicly and privately-owned public-purpose treatment works. In addition, the paper notes that all Corps projects “remain authorized in perpetuity.” As a result, even simple modifications to older facilities are subject to the Corps’ CWA Section 408 authority, which increases costs to the Government and the applicant.

There are suggested provisions to provide additional flexibility to the Veterans Affairs Department to manage its assets that are aging and yet growing in value.

There are “Land Revitalization” provisions that address Brownfields and Superfund remediation and cleanup projects. A Superfund Revolving Loan Fund and Grant Program would be established, and some Superfund NPL sites would be made eligible for Brownfield grants. Other Superfund reforms would be enacted, including providing EPA with “express settlement authority” to enter into administrative agreements with Bona Fide Prospective Purchasers and “other statutorily protected parties” to perform remedial actions and thus expedite the cleanup and reuse of Superfund sites. The existing and complicated Superfund processes could be amended to allow for the creative integration of infrastructure projects that will be funded by a third party.

Part 3 addresses “Infrastructure Permitting Improvement.” The “One Agency, One Decision” environmental review structure would be enacted (currently, it is being promoted by Executive Order) to accelerate the federal environmental permitting review process. Interestingly, and this may be a response to recent decisions by the courts, an agency should not be required to consider alternatives that are outside of its authority or beyond its capability of the applicant.

The Council on Environmental Quality (CEQ) would be directed to update and streamline its NEPA rules that affect all federal agencies; they have largely been untouched since 1978. The perceived redundancy in EPA review of environmental impact statements required by Section 309 of the Clean Air Act (CAA) should be eliminated insofar—if this is the point– as they may not even relate to matters immediately subject to the CAA. There is also redundancy and duplication in the mitigation banking review process which should be addressed.

The paper notes the current authority of EPA to veto a Corps’ project long after it has been approved by the Corps; this should be eliminated, and the Secretary of the Army should have exclusive authority to make Section 404 “jurisdictional determinations.”

The ability of states to abuse their CWA Section 401 water quality certification is noted. The law should be amended to address this procedure, which has been used recently to frustrate pipeline permitting and construction. The five year permit limit of a National Pollution Discharge Elimination System (NPDES) permit should be lengthened to fifteen years to assure the stability needed by public and private investments in water infrastructure projects. The periodic CAA National Ambient Air Quality Standards (NAAQS) process should be reformed to allow states and other permitting authorities to conform only to the latest NAAQS.

More delegation to state permitting authorities is advocated, and courts would be limited in their ability to enjoin projects because of an alleged NEPA violation to “exceptional circumstances.”

Part 4 addresses “Workforce Development.” The existing state licensing requirements should be reasonably reformed to allow qualified out-of-state workers to work on projects receiving federal infrastructure funds. Pell Grant eligibility would be reformed to include short-term high quality skilled trades programs.

DISCLAIMER: 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.

© Pillsbury - Gravel2Gavel Construction & Real Estate Law | Attorney Advertising

Written by:

Pillsbury - Gravel2Gavel Construction & Real Estate Law

Pillsbury - Gravel2Gavel Construction & Real Estate Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.