Infrastructure Investment and Jobs Act Makes Funds Available for Drone Projects

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Payton Alexander, a law clerk at Wiley Rein LLP, contributed to this blog post.

Section 25005 of the recently passed $1.2 trillion Infrastructure Investment and Jobs Act of 2021 (the Act) authorizes a $500 million program known as the Strengthening Mobility and Revolutionizing Transportation (SMART) Grant Program, under which a newly created Department of Transportation (DOT) “Office of Multimodal Infrastructure and Freight” will provide grants for demonstration projects focused on advanced smart city or community technologies and systems to improve transportation efficiency and safety. This program envisions the use of connected networks of devices and sensor data—the Internet of Things—to improve governance and quality of life in urban areas and other communities, as well as to reduce costs to governments. Importantly, funds under the program will be available for projects using uncrewed aircraft systems (UAS or drones).[1]

SMART program grants may be awarded to projects that leverage the use of innovative aviation technology, such as UAS, to support transportation safety and efficiencies, including traffic monitoring and infrastructure inspection. To be eligible for SMART grant funds, an applicant must be a state, a political subdivision of a state, a Tribal government, a public transit agency or authority, a public toll authority, a metropolitan planning organization, or a group of two or more of the preceding entities applying through a single lead applicant.

These funds may be made available for a number of eligible project costs, including development phase activities such as planning, feasibility analyses, revenue forecasting, environmental review, permitting, preliminary engineering and design work, systems development or information technology work, and acquisition of real property, including land and improvements to land relating to an eligible project.

These funds are also available for construction phase activities, including reconstruction, rehabilitation, replacement, environmental mitigation, construction contingencies, and acquisition of equipment, including vehicles. However, program funds may not be used to reimburse any pre-award costs or application preparation costs of the SMART grant application, for any traffic or parking enforcement activity, or to purchase or lease license plate readers.

In evaluating grant applications, the Act requires DOT to consider geographical diversity among grant recipients and to balance the needs of rural communities, midsized communities, and large communities. $100 million in funding is to be made available for fiscal year 2022 until expended, followed by $100 million a year through fiscal year 2026.

The SMART program is the latest source of federal funding to promote innovative uses of drones. The Federal Aviation Administration (FAA) also administers the BEYOND program, a drone-focused program that allows state and local government participants to partner with UAS industry stakeholders to conduct pilot programs for innovative drone operations. The program allows participants to obtain fast-tracked FAA approval for operations that are not otherwise permitted under the FAA’s Part 107 regulations governing commercial UAS. The purpose of the program is to promote beyond visual line of sight drone operations, collect data for the FAA on the benefits of UAS, and identify and address challenges integrating drones into communities. Although the BEYOND program is not focused on smart cities objectives specifically, multiple current participants are state departments of transportation, and at least one of the pilot programs involves transportation infrastructure inspection. The SMART grant program established by the Act therefore may dovetail nicely with ongoing efforts to promote innovation in the drone space, while also offering new opportunities for entities that have not previously participated in FAA drone-focused programs.

[1] Although UAS traditionally has stood for “unmanned aircraft systems,” DOT and the industry have taken steps to move toward more inclusive language for a variety of aviation terms, including UAS.

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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