Federal Infrastructure Policy and Funding Update: 2023 No. 3 - State of the Union Edition

The State of the Union is typically an opportunity for the sitting president to recite their accomplishments and chart a vision for the future, focusing on “kitchen table” topics that everyone can relate to. Infrastructure might get a sentence or two but doesn’t often get entire paragraphs. Side note: I can remember when I was in government working very hard to improve the federal environmental review and approval process and becoming giddy when former President Obama dropped a throwaway line in his 2012 State of the Union about “cutting red tape,” and my Facebook memories remind me of that policy nerd moment every year about this time. President Biden tackled infrastructure head-on in his remarks, touting the progress made under the Bipartisan Infrastructure Law and the promise of the Inflation Reduction Act. It was exciting to listen to the president talk about the work we do every day and see the response from those in the chamber in a show of rare bipartisan support for the BIL investments (not so much for the Inflation Reduction Act). A few notable infrastructure moments from the speech that do not include heckling were:

• The president observed that to maintain the best economy in the world, the U.S. must have the best infrastructure in the world – but currently, we are 13th among developed nations. The Bipartisan Infrastructure Law represents the most significant investment in infrastructure since President Eisenhower established the Interstate Highway System and has already funded more than 20,000 projects in urban, rural, and tribal lands. (This policy and funding update covers funding for passenger rail and new opportunities to improve safety on our highways, roadways, and streets).
• The president highlighted the need to replace lead pipes to eliminate the risks they pose to human health (we cover a related announcement of a lead pipe replacement accelerator program this week)
• The president also acknowledged the substantial investment in broadband expansion, noting that no child should have to go to a McDonald’s to access high-speed internet. (see our broadband services for more information on our capabilities and thought leadership in this area.)
• He also touted the transformative nature of the Inflation Reduction Act to address healthcare needs and support the U.S. economy’s transition to more sustainable energy sources and reducing greenhouse gas emissions to lessen our contributions to climate change. It is the most significant investment in climate change in history. One goal in this part of the speech stood out: building/installing 500,000 electric vehicle charging stations across the U.S. That network would support much longer trips by EVs and make them a more practical choice for long trips. Additionally, although not cited by the President during his speech, reports cite 100,000 new jobs announced by companies in response to the funding provided through the legislation. You can review our snapshot of the direct investments from Act.
• The President made what seemed like a bold policy announcement regarding Buy America:
  • Tonight, I’m also announcing new standards to require all construction materials used in federal infrastructure projects to be made in America. American-made lumber, glass, drywall, fiber optic cables. And on my watch, American roads, American bridges, and American highways will be made with American products.

As expected, the mention was sparse on details, so we don’t know how this will play out, but we’ll keep an eye on it.

Below we discuss transportation, water lines, and abandoned wells, all related to topics covered in the State of the Union, so a nice tie-in for this week’s policy and funding update! Full Text Version of Speech

Key Recent Policy and Funding Happenings

• Federal Highway Administration Seeks Input on Ways to Improve Safety
• Federal Transit Administration Releases Updated Categorical Exclusion Guidance
• Federal Railroad Administration Extends Deadline for Corridor ID Program
• Environmental Protection Agency Launches Lead Service Line Replacement Accelerators
• Department of the Interior Releases Orphaned Well Program Guidance

Federal Highway Administration Seeks Input on Ways to Improve Safety

FHWA announced two new efforts to help states, cities, and local government, including a Request for Information that seeks input on several topics:

• Improving road safety for all users
• Design standards for the National Highway System
• Safety Performance Assessment Applicability
• Conducting a Safety Performance Assessment
• Safety Performance Assessment Process Evaluation and Outcomes
• Safety Performance Assessment Implementation Considerations

The RFI provides 27 questions under these topics and invites responses from interested stakeholders before March 20, 2023.

In addition to the RFI, FHWA announced its latest effort to help accelerate Complete Streets efforts, including a waiver to reduce Complete Streets planning costs for States and MPOs. Under the waiver, states and MPOs can use federal funding for 100% of the expenses associated with certain planning and research activities.

Federal Transit Administration Releases Updated Categorical Exclusion Guidance

FTA released new guidance on applying Categorical Exclusions under the National Environmental Policy Act. FTA’s CEs are listed in the Code of Federal Regulations at 23 CFR 771.118 and describe activities that FTA has determined do not typically result in significant environmental effects requiring additional study as well as actions that may be categorically excluded from more rigorous analysis, provided sufficient documentation. Those two categories comprise the (c) and (d) lists. FTA describes the guidance as necessary “in response to statutory and regulatory changes, as well as the need for clarification on certain issues that have arisen on the application of categorical exclusions to particular projects. This new guidance provides a thorough discussion of all (c) list CEs and the examples of projects discussed in the (d) list and is a valuable tool for project sponsors and NEPA practitioners (and I’m not just saying that as a NEPA-nerd).

Federal Railroad Administration Extends Deadlines for Intercity Passenger Rail

The FRA published a notice in the Federal Register that extended the application submittal period for the Corridor Identification and Development program from March 20, 2023, to March 27, 2023. You can read more about the program in our Program Summary. In a related note, FRA also extended the application deadline for the companion Federal-State Partnership for Intercity Passenger Rail grant program for projects outside the Northeast Corridor, which now has an April 21, 2023, deadline. The program offers $4.57 billion in funding for intercity passenger rail projects. More on the program in our Grant Summary.  

Environmental Protection Agency Launches Lead Service Line Replacement Accelerators

The EPA launched a new initiative to accelerate progress toward achieving 100% lead service line removal and replacement. The initiative will provide targeted technical assistance services to help underserved communities access funds to replace lead pipes that pose risks to the health of children and families. In delivering this technical assistance, the EPA is partnering with the U.S. Department of Labor and Connecticut, Pennsylvania, New Jersey, and Wisconsin to work with 40 communities across those states in 2023. The EPA press release states that “[t]he technical assistance will guide communities through the process of lead service line removals from start to finish. This will include support in developing lead service line replacement plans, conducting inventories to identify lead pipes, increasing community outreach and education efforts, and supporting applications for funding.”

Department of the Interior Releases Orphaned Well Program Guidance

DOI released draft guidance to states on applying for $500 million in formula grant funding for cleaning up polluted and unsafe orphaned oil and gas wells across the country. The $500 million is part of a total of $4.7 billion available to address orphaned wells across the country. An initial $560 million in grant funding was allocated to states in August 2022.

The draft guidance implements Section 40601 of the IIJA/BIL that creates an orphaned well site plugging, remediation, and reclamation program within DOI to address orphaned wells and well sites on Federal lands. Specifically, the guidance addresses State Formula grants authorized by Section 40601(c)(4) and indicates what information is required in applications for formula grants and for the expenditure of grant funding.

More information from DOI on the program is available in their press release. Comments on the draft guidance are due February 24, 2023, and can be submitted via email to: orphanedwells [at] ios.doi.gov (orphanedwells[at]ios[dot]doi[dot]gov).