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Federal Infrastructure Policy and Funding Update: 2023 No. 1

January 09, 2023

Happy New Year! I hope that everyone had a restful and safe holiday season. There is a lot to recap and little chance that we can get through it all in this format. Instead, we are going to follow that age-old tradition of starting over in the New Year. You may have noticed that the frequency of the emails dropped substantially during the holidays as your scribe was balancing end-of-year demands (both project and personal) that didn't allow for the sort of analysis and summary that I want to provide and instead of doing a poor job, I wound up not doing the job at all! New year, new focus! And 2023 promises to bring lots of exciting policy news with the implementation of the Inflation Reduction Act, new rules governing environmental reviews, and supporting greenhouse gas emission reductions, among many others.

We don't expect a lot of legislation with a divided Congress and a razor's edge majority for Republicans in the House. We may not even see another budget this year. As a result, all of the responsibility for executing this Administration's vision on climate, sustainability, and equity falls on the cabinet agencies. Expect to see a lot of rulemaking, policy, and guidance coming out of Washington D.C. and we'll be here to keep you up to speed on the latest and greatest with insights and a dash of humor.

To that end, we have some important developments from the Environmental Protection Agency and the Council on Environmental Quality addressing air quality and greenhouse gas emissions, respectively. USDOT also continues to make funding available through discretionary programs with recent announcements regarding MEGA, the Bridge Program, the Corridor ID Program, and others.

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Key Recent Policy and Funding Happenings

EPA Reconsiders National Ambient Air Quality Standards for Particulate Matter
U.S. Army Corps of Engineers and EPA Revise the Definition of "Waters of the United States"
Council on Environmental Quality Publishes Guidance on Considering Greenhouse Gas Emissions and Climate Change during National Environmental Policy Act Reviews
USDOT Keeps Discretionary Funding Programs Rolling

EPA Reconsiders National Ambient Air Quality Standards for Particulate Matter

On January 6th, the EPA announced a proposed decision to revise the primary (health-based) annual standard regulating fine particulate matter (PM2.5). The proposed change would lower the allowable emissions from 12.0 µg/m3 to within the range of 9.0 to 10.0 µg/m3. Particulate matter is the term for a mixture of solid particles and liquid droplets found in the air. Some particles, such as dust, dirt, soot, or smoke are large or dark enough to be seen with the naked eye. Others are so small they can only be detected using an electron microscope. Due to their tiny size, these PM can be inhaled and reach deep into our lungs and possibly enter our bloodstream. PM2.5 are considered the greatest to human health. For more information on Particulate Matter, see the EPA's PM Basics page.

The Notice of Proposed Rulemaking requests comments from the public regarding the EPA's proposal to lower the primary standard of PM2.5, to a range between 9.0 to 10.0 µg/m3 as well as a broader range of 8.0 to 11.0 µg/m3. The EPA proposes to retain the current 24-hour standard of 35 µg/m3 but indicates that it will accept comments on a lower standard of 25 µg/m3. Currently, EPA has primary and secondary standards for PM2.5 (annual average standards with levels of 12.0 µg/m3 and 15.0 µg/m3, respectively; 24-hour standards with 98th percentile forms and levels of 35 µg/m3) and PM10 (24-hour standards with one-expected exceedance forms and levels of 150 µg/m3).

This potential lowering of the primary standard will affect the industrial sector as well as potentially the transportation sector as these lower thresholds could move certain areas into nonattainment. HDR's air quality experts are monitoring this rulemaking and are available to consult with clients interested in learning more about how this may affect their operations.

U.S. Army Corps of Engineers and EPA Revise the Definition of "Waters of the United States"

The agencies recently announced the final "Revised Definition of Waters of the United States." The final rule establishes a "durable definition" to reduce uncertainty from changing regulatory definitions, protect people's health, and support economic opportunity. The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. This final rule follows the Notice of Proposed Rulemaking published on November 18, 2021, and which elicited over 2,000 public comments.

The Clean Water Act prohibits the discharge of pollutants from a point source into "navigable waters" which are defined in the Act as "waters of the United States", making that term a threshold establishing a geographic scope of federal jurisdiction under the Clean Water Act.

Council on Environmental Quality Publishes Guidance on Considering Greenhouse Gas Emissions and Climate Change during National Environmental Policy Act Reviews

The Council on Environmental Quality (CEQ) published interim guidance to assist agencies in analyzing greenhouse gas (GHG) and climate change effects of proposed actions under the National Environmental Policy Act (NEPA). The guidance is considered "interim" to allow agencies to immediately use the guidance while CEQ accepts public comment. CEQ will accept public comment on the guidance on or before March 10, 2023.

CEQ states that the interim guidance will "facilitate compliance with existing NEPA requirements, improving the efficiency and consistency of reviews of proposed federal actions for agencies, decision-makers, project proponents, and the public."

Consistent with NEPA, federal agencies must disclose and consider the reasonably foreseeable effects of their proposed actions – including the extent to which a proposed action and its reasonable alternatives would result in a reasonably foreseeable GHG emissions that contribute to climate change. To analyze a proposed action's climate change effects under NEPA, the guidance directs agencies to.

Quantify the reasonably foreseeable GHG emissions of a proposed action and its reasonable alternatives
Disclose and provide context for the GHG emissions and climate impacts associated with a proposed action and alternatives, including by monetizing climate damages, placing emissions in the context of relevant climate action goals, and providing common equivalents
Analyze reasonable alternatives, including those that would reduce GHG emissions relative to baseline conditions, and identify available mitigation measures to avoid, minimize, or compensate for climate effects.

This guidance will have far-reaching effects on how agencies comply with NEPA and our NEPA experts are preparing an analysis of the likely real-world effects of this new guidance. More to come on this in the weeks ahead.

USDOT Keeps Discretionary Funding Programs Rolling

The U.S. Department of Transportation continues to make regular announcements of project selections and available funds for discretionary programs funded through the Infrastructure Investment and Jobs Act.

RAISE Program Opens for FY 2023 with $1.5 Billion Available

The USDOT has issued an updated Notice of Funding Opportunity that addresses funds available, qualifications, and application requirements. The updated NOFO highlights some key changes from the FY 2022 program which are highlighted in the HDR Grant Summary available here. Importantly, applications for this round of RAISE grant funding are due no later than February 28, 2023, at 11:59 PM EST.

$2.1 Billion Announced for Large Bridge Grants

USDOT selected four projects as recipients of the Large Bridge Grants, totaling $2.1 billion. The grants will fund bridge construction, connecting communities in five states:

The Brent Spence Bridge connecting Kentucky and Ohio received $1.385 billion. The existing bridge is the second worst truck bottleneck in the nation and carries more than $400 billion in freight per year. The project includes the construction of a new companion bridge immediately west of the existing bridge to accommodate interstate through traffic on two bridge decks, and the complete reconstruction of eight-mile interstate approach corridors both in Ohio and Kentucky, replacing 54 additional bridges.
The Golden Gate Bridge, Highway and Transportation District in California will receive $400 million to replace, retrofit, and install critical structure elements on the Golden Gate Bridge to increase resiliency against earthquakes. The Golden Gate Bridge in vital to an estimated 37 million vehicle s crossing the bridge each year, including 555,000 freight trucks, as well as waterborne commerce through the Golden Gate Strait, connected to the Port of Oakland.
The Gold Star Memorial Bridge, on the I-95 corridor in Connecticut, connecting New London and Groton will receive $158 million. The bridge carries five lanes of traffic and 42,600 vehicles per day and is a vital connection for people good traveling between New York and New England.
The City of Chicago will receive $144 million to rehabilitate four bridges over the Calumet River on the Southside of Chicago. The Calumet River connects Lake Michigan with the Lake Calumet Port District which is further connected to the Illinois River providing access to the Gulf of Mexico. Each bridge lifts an average of 5,000 times per year, providing continuous and safe access for marine traffic to and from the Port and surrounding industry.

$9 Billion Available to Support Northeast Corridor Improvements

Looking back to last year, USDOT announced a Notice of Funding Opportunity making nearly $9 billion in funding to upgrade and expand passenger rail services along the Northeast Corridor connecting Washington DC to Boston. Awarded through the Federal-State Partnership for Intercity Passenger Rail Grant Program, the grants will fund projects of national and regional significance, improving infrastructure, equipment, and facilities, including bridges and tunnels, rail stations, and track.

$2.8 Billion Available to Support Intercity Passenger Rail Nationally

The Federal-State Partnership for Intercity Passenger Rail makes an additional $2.8 billion available nationally to improve American passenger rail assets to expand or establish new intercity passenger rail service, reduce the state of good repair backlog for passenger rail assets, improve performance, and enhance rail safety. A detailed summary of the program is available in the HDR Grant Summary here. Applications are due no later than 5:00 PM EST on March 7, 2023.

FRA Opens up the Corridor Identification and Development Program

This new program, created by the IIJA, is intended to create a pipeline of passenger rail projects by selecting projects to pass through phases of project development with FRA financial and technical support. The notice, published in the Federal Register details the application requirements and procedures for the selection of eligible corridors to participate in the program and obtain grant funding appropriated in the fiscal year 2022.

The program is defined through three distinct steps:

Step 1 – Initiation of a grantee's Corridor development efforts under the Program and development of a scope, schedule, and cost estimate for preparing a Service Development Plan.

Step 2 – Preparation of a Service Development Plan (or update to an existing plan) to complete Project Planning work consistent with FRA's Guidance on Development and Implementation of Railroad Capital Projects

Step 3 – The preparation of documentation to complete project development work necessary to prepare the corridor (or phase of the corridor) for implementation, including project design, preliminary engineering, environmental review activities under the National Environmental Policy Act, and other actions, as necessary.

Applications for the Corridor ID Program are due no later than 5 pm. Eastern on March 20, 2023.

Rural Surface Transportation Program Provides $274 Million to 12 Projects

The new program, also created by the IIJA, provides funding to help rural communities increase connectivity, improve safety and reliability, support regional economic growth, and improve the quality of life for people living in rural areas. USDOT's announcement can be found here. The full list of grant recipients can be found here.