Senate Panel Advances Highway Reauthorization Bill

On May 26, the Senate Environment & Public Works (EPW) Committee unanimously voted to advance a five-year highway reauthorization measure. The bill, known as the Surface Transportation Reauthorization Act (STRA) of 2021, sets a baseline funding level of $303.5 billion for highways, roads, and bridges. The proposed funding represents an increase of 34 percent when compared to the levels authorized by the previous long-term surface transportation law (FAST Act; PL 114-94).

During committee consideration, the panel agreed to incorporate approximately 90 noncontroversial provisions put forward by lawmakers on the committee. Despite the largely bipartisan nature of the markup, Senators Ed Markey (D-MA) and Dan Sullivan (R-AK) offered an amendment that garnered some pushback from GOP leaders. The proposal, which was narrowly approved, would direct an additional $200 million to connect walking and biking infrastructure into active transportation networks. Those opposing the measure noted that the legislation already directs $7.2 billion for alternative transportation projects.

Other select highlights of the legislation include:

Surface Transportation Block Grant (STBG) Program

• Increases the off-system bridge set-aside. Under the bill, not less than 20 percent of a state’s STBG allocation would need to be spent on bridges that are located off of the Federal-aid highway system (up from 15 percent under current law).
• Creates a new set-aside for transportation projects in rural areas.
• Creates a new population tranche for STBG sub-allocated funds (new category is for areas with a population of 50,000 to 200,000).
• Increases the amount of funding set aside for the Transportation Alternatives Program (TAP) and increases the minimum percentage of TAP funding that is sub-allocated on the basis of population.
• Adds new eligibilities to STBG, including construction of wildlife crossing structures, electric vehicle charging infrastructure and vehicle-to-grid infrastructure, installation and deployment of intelligent transportation technologies, projects that facilitate intermodal connections between emerging transportation technologies, resilience features, cybersecurity protections, etc.

Bridge Investment Program

• Creates a new competitive grant program to assist State, local, and tribal governments in rehabilitating or replacing bridges, including culverts; includes eligibility for large projects and bundling of smaller bridges. Authorized at $600 million in FY 2022, with the authorization level rising to $700 million in FY 2026.

Rural Surface Transportation Grant Program

• Creates a new rural surface transportation grant program whereby DOT is authorized to provide grants, on a competitive basis, to eligible entities to improve and expand transportation infrastructure in rural areas. The goals of the program include increasing connectivity, improving safety and reliability of the movement of people and freight, and the generation of regional economic growth.

National Highway Performance Program

• Augments the purpose of the NHPP to include a focus on measures that increase resiliency to the impacts of sea level rise, extreme weather events, flooding, and other natural disasters, such as earthquakes and rockslides. Expands eligibility for States to use NHPP funds for resiliency, cybersecurity, and undergrounding utility infrastructure. The bill also allows a State to use up to 15 percent of its NHPP funding for protective features on a Federal-aid highway or bridge that is off the NHS if the protective feature is designed to mitigate the risk of recurring damage or the cost of future repairs from extreme weather events, flooding, or other natural disasters.

Emergency Relief Projects

• Requires DOT to revise the Emergency Relief (ER) program manual of FHWA to: include a definition of resilience; identify procedures that may be used to incorporate resilience into ER projects; encourage the use of complete streets design principles in ER projects; develop best practices for improving the use of resilience in ER projects; and develop and implement a process to track the consideration of resilience as part of the ER program, as well as the cost of ER projects.

Streamlining

• Codification of One Federal Decision – Creates new environmental review procedures and requirements for major projects. Under the bill, DOT is required to develop a schedule consistent with an agency average of two years to complete an EIS and requires accountability to the public when milestones are missed. Environmental documents under this section are limited to 200 pages unless a review is of unusual scope and complexity. The Secretary of DOT is directed to work with relevant Federal agencies to adopt appropriate categorical exclusions to facilitate project delivery.
• Efficient Implementation of NEPA for Federal Lands Management Projects – Allows for a Federal land management agency to more efficiently satisfy NEPA obligations by relying upon an environmental document previously prepared by FHWA. The bill allows for a Federal Land Management Agency to use the CEs promulgated in the implementing regulations of the FHWA if the use of the CE would not otherwise conflict with the implementing regulations of the project sponsor.
• Surface Transportation Project Delivery Program Written Agreements – Extends the time period for a State to have an agreement to assume the responsibilities under NEPA, from a term of not more than 5 years, to allow for any State that has participated in a program under this section for at least 10 years, to have a term of 10 years.

Carbon Reduction Program (Formula)

• Establishes a Carbon Reduction Program to reduce transportation emissions. Eligible projects include the construction, planning, and design of on-road and off-road trail facilities for pedestrians and bicyclists, advanced transportation and congestion management technologies, the deployment of infrastructure-based intelligent transportation systems capital improvements and the installation of vehicle to infrastructure communications equipment, and the development of a carbon reduction strategy, among others.

Congestion Relief Program

• Establishes a Congestion Relief Program to provide competitive grants to States, local governments, and MPOs for projects in large urbanized areas to advance innovative, integrated, and multimodal solutions to congestion relief in the most congested metropolitan areas.

Promoting Resilient Operations for Transformative, Efficient, and Cost-saving Transportation (PROTECT) Grant Program

• Establishes a formula and competitive grant program to help States improve the resiliency of transportation infrastructure. Grants include resilience improvement projects, community resilience and evacuation route grants, and at-risk coastal infrastructure grants.

Safe Routes to School

• Codifies the Safe Routes to School Program and amends the program to apply it through 12th grade to enable and encourage high school students to walk and bike to school.

National Motor Vehicle Per-Mile User Fee Pilot

• Directs the Secretary of DOT, in coordination with the Secretary of the Treasury, to establish a pilot program to demonstrate a national motor vehicle per-mile user fee. In carrying out the pilot program, the Secretary, in coordination with the Secretary of the Treasury, shall provide different methods that volunteer participants can choose from to track motor vehicle miles traveled, solicit volunteer participants from all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico, ensure an equitable geographic distribution by population among volunteer participants, and include commercial vehicles and passenger motor vehicles. For the purposes of the pilot program, the Secretary of the Treasury shall establish, on an annual basis, per-mile user fees for passenger motor vehicles, light trucks, and medium- and heavy-duty trucks, which amount may vary between vehicle types and weight classes to reflect estimated impacts on infrastructure, safety, congestion, the environment, or other related social impacts.

Justice Department Reverses Trump-era Limits on SCAAP

In a major victory for California’s counties, the U.S. Department of Justice (DOJ) has rescinded a series of grant funding conditions that the Trump administration sought to place on the State Criminal Alien Assistance Program (SCAAP). The now-repealed changes, which were slated to go into effect this year, would have precluded California’s counties from seeking federal SCAAP reimbursement for the costs of incarcerating undocumented criminals. The policy rescissions were confirmed by the Justice Department in a recent document, which can be found here.

It should be noted that DOJ’s actions are the result of a Department-wide review that was initiated earlier this year pursuant to President Biden’s Executive Order (EO) on the Revision of Civil Immigration Enforcement Policies and Priorities. In that particular EO, the president instructed DOJ and other relevant departments to review any previous administration policies that imposed immigration law-related conditions on certain federal grant programs. Many of those controversial policies have been extensively litigated, including the Trump administration’s efforts to restrict Byrne-Justice Assistance Grant (JAG) and Community Oriented Policing Services (COPS) funding to so-called “sanctuary cities.”

Looking ahead, and according to DOJ, the fiscal year 2020 SCAAP Program Requirement and Application Instructions are being revised and will be reposted. If jurisdictions already submitted an application agreeing to any of the certifications imposed in the previous program solicitation, the certifications will not be enforced.

Biden Administration Set to Release Full FY 2022 Budget Proposal on Friday

On May 28, the Biden administration will unveil its comprehensive fiscal year 2022 budget proposal. Unlike the $1.5 trillion “skinny” budget that the White House released in early April, the full budget is expected to cover broader spending categories and a longer time frame. It will also include projections for major mandatory spending programs such as Social Security, Medicare and Medicaid, and will incorporate policies the president wants to enact. However, it is not expected to include some of the key health care proposals that the president campaigned on (i.e. enacting a public health insurance option; lowering prescription drug costs), as the administration intends to remain focused on advancing its duel infrastructure proposals: the American Jobs Plan and the American Families Plan.

President Biden Increases Funding for FEMA’s BRIC Program

On May 24, President Biden announced that his administration would increase the amount of funding set aside for FEMA’s Building Resilient Infrastructure and Communities (BRIC) program to $1 billion (up from $500 million). The BRIC program, which was created by the Disaster Recovery Reform Act (DRRA; PL 115-254), helps communities prepare for and become more resilient to wildfires, floods, droughts, and other natural disasters. It should be noted that the White House will target approximately 40 percent of the additional money to disadvantaged areas. Additional information on this announcement and other pre-disaster mitigation initiatives undertaken by the Biden administration can be found here.

Senators Feinstein, Padilla Introduce Legislation to Reduce Catastrophic Wildfires

On May 26, Senators Dianne Feinstein (D-CA) and Alex Padilla (D-CA) introduced legislation (S 1855) – the Wildfire Emergency Act of 2021 – that would help reduce catastrophic wildfires in the West. A House companion measure (HR 3534) is sponsored by a group of California Democrats led by Congressman Jimmy Panetta (D-CA). The bill utilizes a three-pronged approach to tackle the increasing wildfire threat, namely large-scale forest restoration projects, hardening of critical infrastructure, and increased training of key fire response personnel.

The Wildfire Emergency Act would authorize $250 million for a new program to conduct large-scale forest restoration projects. Among other things, these landscape-level projects can include removing dead and dying trees, using controlled burns to reduce fuel for larger fires, and clearing out invasive and non-native species.

In addition, the bill would authorize $100 million in new grant funding to improve the energy resilience of critical infrastructure. Specifically, the program would help retrofit key structures (i.e. hospitals, police departments, fire stations, utilities etc.) so they can function effectively during power shutoffs. Funds also could be used to expand the use of distributed energy systems, including microgrids. Additionally, the legislation would expand the Energy Department’s weatherization program so that homes can be retrofitted to make them more resilient to wildfire through the use of fire-resistant building materials and other methods.

In addition to the Wildfire Emergency Act, Senator Feinstein recently reintroduced legislation (S 1734) that would increase the pace and scale of controlled burns on federal, state, and private lands, particularly in high risk areas. The National Prescribed Fire Act of 2021 would also establish a workforce development program to develop, train, and hire prescribed fire practitioners. Finally, the measure would give states more flexibility to regulate controlled burns in the winter months.