Infrastructure Alert - November 6, 2013

by Cozen O'Connor


On October 23, the House passed H.R. 3080, the Water Resources Reform and Development Act of 2013 by a vote of 417-3. The near-unanimous vote on a bill with significant authorizations is notable considering the recenthyperpartisanship and congressional gridlock. The Senate bill S. 601, the Water Resources Development Act of 2013, received similar bipartisan support and only 14 votes were cast against it. The Senate has appointed its conferees: Chairwoman Barbara Boxer (D-Calif.), Ranking Member David Vitter (R-La.) , Sen. Max Baucus (D-Mo.), Sen. Tom Carper (D-Del.), Sen. Sheldon Whitehouse (D-R.I.), Sen. Jim Inhofe (R-Okla.), and Sen. John Barrasso (R-Wyo.). The House is expected to appoint its conferees soon, and a conference committee is expected to begin shortly thereafter.

Of the major differences in the House and Senate bill, S. 601 creates several programs to which H.R. 3080 does not have equivalents. S. 601 creates a loan guarantee program for state and local governments, as well as nongovernmental organizations, for use in water infrastructure projects called “Water Infrastructure Finance and Innovation Act” (WIFIA) loans, similar to TIFIA loans. S. 601 would also authorize the Army Corps of Engineers to create grant programs to assist local and state governments with levee safety. H.R. 3080 would authorize several projects that would not be eligible for authorization under S. 601.

The three votes against the bill were from Rep. Jim Sensenbrenner (R-Wis.), Rep. Walter Jones (R-N.C.), and Rep. Collin Peterson (D-N.C.). Reps. Jones and Peterson have stated they voted against the bill because it did not help certain projects in their districts. WRRDA does not reauthorize a flood diversion project in Peterson’s district, and a jetty project that was authorized in 1970 is likely to be cancelled in Jones’ district. Jones sponsored an amendment to try to protect the jetty project, but it was not approved by the Rules Committee.

The White House released a Statement of Administration Policy in support of the bill with only a few exceptions, including concerns over the permitting and delivery provisions that may slow projects and provisions that could constrain “science-based decision making, increase litigation risk, and undermine the integrity of several foundational environmental laws, including the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act.”

The special panel on 21st Century Freight Transpiration tasked by House Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) to submit a report to the full committee regarding the state of and policy recommendations for the national freight transportation system has released its report, titled “Improving the Nation’s Freight Transportation System: Findings and Recommendations of the Special Panel on 21st Century Freight Transportation.” Among other recommendations, the report recommends that Congress pass legislation to direct the Secretary of Transportation, Secretary of the Army, and the Commandant of the U.S. Coast Guard to establish a comprehensive national freight transportation policy and designate a national, multimodal freight network, to incentivize additional private investment in freight transportation facilities, to maintain and improve the condition and performance of the freight transportation network, to authorize dedicated, sustainable funding for multimodal freight Projects of National and Regional Significance through a grant process and establish clear benchmarks for project selection, and to pass legislation to direct the Secretary of Transportation, Secretary of the Treasury, and the Secretary of the Army to identify and recommend sustainable sources of revenue across all modes of transportation that would align contributions with use of the multimodal freight network. The report also instructs the Committee on Transportation and Infrastructure and Committee on Ways and Means to review these freight funding recommendations from Secretary of Transportation and to develop funding and revenue options to include in the 2014 surface transportation reauthorization bill.

On October 30, House and Senate version of a bill were introduced that would permit testing hair samples for drug violations in the professional trucking industry. In the Senate, Sens. Mark Pryor (D-Ark.) and Jon Boozman (R-Ark.) are co-sponsoring S. 1625, and in the House, Reps. Rick Crawford (R-Ark.), Tom Cotton (R-Ark.), Tim Griffin (R-Ark.), ReidRibble (R-Wis.), and Steve Womack (R-Ark.) are co-sponsoring H.R. 3403.

Today, the Senate Special Committee on Aging will hold a hearing titled “Transportation: A Challenge to Independence for Seniors.” Witnesses include Grant Baldwin, the Director of the Division of Unintentional Injury Prevention of the National Center for Injury Prevention and Control; Therese McMillan, Deputy Administrator of the Federal Transit Administration; Virginia Dize, Co-Director of the National Center on Senior Transportation of the National Association of Area Agencies on Aging; and Katherine Freund, the Founder and President of the Independent Transportation Network America.

Also today, the Senate Homeland Security and Governmental Affairs Subcommittee on Emergency Management, Intergovernmental Relations, and the District of Columbia will hold a hearing titled “One Year Later: Examining the Ongoing Recovery from Hurricane Sandy.” Witnesses include Shaun Donovan, the Secretary of Housing and Urban Development; John Porcari, the Deputy Secretary of Transportation; W. Craig Fugate, the Administrator of the Federal Emergency Management Agency (FEMA), Jo-Ellen Darcy, the Assistant Secretary of the Army for Civil Works; KathleenTighe, Chairwoman of the Recovery Accountability and Transparency Board; and Cas Holloway, New York City Deputy Mayor for Operations. The hearing begins at 2:30 p.m., and written testimony and streaming video will be availablehere.


The Federal Aviation Administration released a new rule that will give airlines more leeway in whether or not electronic devices must be powered off during takeoffs and landings. The reversal of the oft-criticized former policy of mandatory shutdown of electronic devices was based on a report by an FAA advisory committee. The FAA stated that it would have likely released this rule earlier but it was delayed due to the government shutdown. The FAA released thisfact sheet with its announcement of the new rule.

In addition to the electronic device rule being delayed, the Department of Transportation released a statement that the October 2013 Significant Rulemaking Report would not be published due to the government shutdown, but the November report will be published on its regular schedule.

On October 28, the Federal Motor Carrier Safety Administration released its final rule titled “Hours of Service of Drivers” to allow for an exception to the mandatory 30-minute rest break for short-haul drivers who are not required to prepare records of duty status.

The Governmental Accountability Office released a report titled “Intelligent Transportation Systems: Vehicle-to-Vehicle Technologies Expected to Offer Safety Benefits, but a Variety of Deployment Challenges Exist.” The Department of Transportation Office of the Inspector General released a report titled “Opportunities Exist to Strengthen FHWA’sCoordination, Guidance, and Oversight of the Tribal Transportation Program.”


FHWA published a chart that compares the amounts that each state contributes to and receives from the Highway Trust Fund in FY2012 and each state’s total cumulated contributions and allocations since the inception of the trust fund in 1956.

California: The two largest unions involved with the BART strike voted on November 1 to approve a four-year contract to end the transit workers’ strike. While the next board meeting for BART’s board of directors is not until November 21, the board is expected to approve the deal. The contract will increase pay by 16.4 percent over the next four years, and bonuses of up to $1,000 will be awarded when BART ridership exceeds expectations. The contract also will have workers contribute to their pension for the first time and increase monthly health care contributions.

Massachusetts: The corporation New Balance has offered to help the state of Massachusetts fund its rail station in Brighton. New Balance has agreed to design and build the rail station under MBTA supervision and pay maintenance costs for the next 10 years. New Balance is estimated to pay between $14 and $16 million to fund the project and maintenance. The company’s 500-employee headquarters is located a few blocks from the future site of the rail stop.

New York: The Department of Transportation has announced that the Tappan Zee bridge project has been officially approved for its $1.6 billion TIFIA loan. The loan is expected to lower the bridge tolls below previously estimated projections. New York is still pursuing additional funding options from federal, state and local sources. The TappanZee bridge is a public-private partnership and is the largest design-build transportation project in the United States. The total cost of the project is estimated at $3.9 billion.

Texas: Texas State Highway 130, a privately operated, TIFIA-financed toll road, has been downgraded by Moody’s and is risking default. Moody’s has downgraded the rating of the SH 130 Concession Company to B1, and its rating outlook is negative. The downgrade is significant not only because of the TIFIA financing, but also because the highway is the first privately built and operated in Texas. The TIFIA loan was approved in March 2008. TIFIA is awarded today strictly on a credit-worthiness basis.

Virginia: On October 31, the Virginia Supreme Court unanimously ruled that tolls on two tunnels to fund a third tunnel are not unconstitutional, as found by a lower court, but are legally permissible user fees. The tolls are scheduled to begin February 1 at $2 per passenger vehicle but will increase incrementally through 2070. The third tunnel that is funded through the tolls of two others was built through a public-private partnership, and was contracted through the use of provisions in the 1995 Virginia Private Partnership Act. Through this statute, the Department of Transportation could set toll rates, and the lower court found this to be an unconstitutional ceding of taxing authority by the state General Assembly. The Supreme Court ruled that the tolls are user fees and not taxes, as they are used not to raise revenue but to fund a specific project.

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.

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