Crowell Infrastructure 2022: An Update on Implementation of the New Bipartisan Infrastructure Law

Crowell & Moring, LLP (Crowell) has established a multi-practice, cross-office Infrastructure Implementation Team to assist U.S. and foreign businesses in monitoring, tracking and making business decisions based on the rollout of $1.2 trillion infrastructure law that was enacted in November 2021. This will be an important and exciting year in the infrastructure space as U.S. federal agencies begin to create new programs, promulgate regulations and push out billions of dollars in infrastructure funding through federal contracts and grants to state, tribal, and local governments and the private sector. Crowell’s Infrastructure Implementation Team is composed of industry leading attorneys and policy professionals in our Government Affairs; Government Contracting; Transportation; Corporate; Mass Torts, Products and Consumer Litigation; Aviation; and Environment, Energy and Natural Resource practices. Our Infrastructure Implementation Team stands ready to help clients navigate the myriad funding opportunities and regulatory actions that will result from the law over the months and years to come.

Introduction

Today we publish our first monthly Client Alert on efforts to date to implement the Infrastructure Investment and Jobs Act. Next month, Crowell will also kick off a new series of webinars digging into the new infrastructure law, focusing first on the federal grants process and regional funding implications.

In the two months since the $1.2 trillion Infrastructure Investment and Jobs Act was enacted into law, agencies and departments across the federal government have begun working toward getting newly authorized programs off the ground and initial funding out the door. While much of the law’s funding passes from the federal government directly to states to support building and replacing infrastructure owned by state, tribal or local governments, based on their needs and priorities, other funding is allocated to federal agencies to build or replace infrastructure owned by the federal government.

The following are highlights of recent implementation activities Crowell is tracking:

White House Coordination

President Biden has designated former New Orleans Mayor and Louisiana Lt. Governor Mitch Landrieu to serve as senior advisor responsible for coordinating the implementation of the Infrastructure Investment and Jobs Act. On January 31, the White House released the first edition of its Bipartisan Infrastructure Law Guidebook, highlighting programs, funding opportunities, and other actions occurring across the federal government to improve transportation, the climate, clean energy, and environment, and broadband pursuant to the new law.

Highways and Bridges

In recent weeks, the Department of Transportation has issued several announcements detailing how much funds each state is expected to receive this fiscal year for specific highway infrastructure programs. Additional details about how states plan to spend the infusion of federal money and on which projects are expected to begin trickling out in the spring.

On December 14, 2021, the U.S. Department of Transportation announced it had issued its state-by-state apportionments for FY22 of almost $52.5 billion in funding under the Infrastructure Investment and Jobs Act to support several Federal-aid highway programs, including the National Highway Performance Program, the Surface Transportation Block Grant Program, the Highway Safety Improvement Program, the Railway-Highway Crossings Program, and the Carbon Reduction Program. Almost half of this round of funding is going to a total of 10 states:.

State	FY22 Apportioned Total for Federal-aid Highway Programs
California	$4,862,447,187
Texas	$5,167,860,243
Florida	$2,510,041,078
New York	$2,223,753,281
Pennsylvania	$2,173,656,077
Illinois	$1,883,531,823
Ohio	$1,775,790,242
Georgia	$1,710,585,738
Michigan	$1,394,849,821
Virginia	$1,348,139,636

On January 14, 2022, the U.S. Department of Transportation announced that $5.5 billion in funding was being set aside and apportioned to states, tribal governments, Puerto Rico and the District of Columbia for bridge replacement, rehabilitation, preservation, protection and construction projects. The funding is being allocated based on existing transportation funding formulas, with 21 states, Puerto Rico and the District of Columbia receiving the minimum allocation of $45 million each. California is set to receive the most of any state – almost $850 million – followed by New York at more than $378 million and Pennsylvania at $327 million.

State	FY22 Apportionment for Bridge Program
California	$849,373,705
New York	$378,414,334
Pennsylvania	$327,178,593
Illinois	$274,807,527
New Jersey	$229,420,082
Massachusetts	$225,256,191
Louisiana	$202,656,529
Washington	$121,012,671
Michigan	$112,627,352
Connecticut	$112,281,199

The Transportation Department issued a notice of funding opportunity on January 27 soliciting applications for $1.5 billion in grants under the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) program. The RAISE grant program has replaced the TIGER grant program that was created under the American Recovery and Reinvestment Act. Applicants are encouraged to identify how their proposed projects would address climate change, ensure racial equity, and remove barriers to opportunity, in addition to improving safety, improving quality of life, and improving economic competitiveness and opportunity. Applications are due April 13, 2022.

Inland Waterways, Dams, and Ports

The bipartisan infrastructure law provided the Department of the Army’s Civil Works Program more than $17 billion in funding over five years. On January 19, 2022, the Army released its FY22 plan for implementing the Infrastructure Investment and Jobs Act.

The projects being funded under the bipartisan infrastructure law include almost $1.1 billion for the Everglades restoration project; $857 million to complete construction work at the Montgomery Lock and Dam along the upper Ohio River in Allegheny and Beaver Counties, PA; $732 million to complete design and construction of Lock and Dam 25 in the upper Mississippi River; $465 million to complete the Kentucky Lock and Dam on the Tennessee River; $403 million to complete design and award the first construction contract for the Central City Project along the Upper Trinity River in Fort Worth, TX; $437 million to complete the Moorhead flood diversion project in Fargo, ND; $478 million to complete the replacement of the locks at Sault St. Marie, MI. 

Western Water Projects

The U.S. Department of the Interior’s Bureau of Reclamation received more than $8 billion over five years for infrastructure projects in 17 western states -- $3 billion of which was earmarked to repair or replace aging infrastructure that the Bureau owns and operates or that is operated by a local beneficiary under contract with the Bureau. The Bureau of Reclamation has also hosted a series of meetings in December 2021 and January 2022 with tribal and other stakeholders to obtain feedback on what projects should receive funding. 

On January 14, 2022, the Bureau of Reclamation released its blueprint for how it plans to spend approximately $1.7 billion in FY22 and into future years. For example, the Bureau of Reclamation announced that $500,000 will be made available to support a feasibility study for the Verde Reservoirs Sediment Mitigation Project in Arizona and $2.5 million will be used to complete design work for the Milk River Project in Montana.

On Dec. 29, 2021, the Bureau announced that its regional offices had begun soliciting applications directly from project operators and beneficiaries to take advantage of funding through the aging infrastructure program and that this initial solicitation would close Jan. 31, 2022. On Jan. 14, 2022, the Bureau released three notices of funding opportunities for water desalinization, reclamation and reuse projects as part of its WaterSMART program.

Program Implementation

While much of the public interest in the Infrastructure Investment and Jobs Act has been on the funding levels, the law also directs the U.S. Department of Transportation, the U.S. Department of Commerce, the U.S. Department of Energy and other departments and agencies to develop standards, regulations, or programs impacting a range of infrastructure classes and modes of transportation.

On Jan. 13, 2022, the Department of Transportation announced the creation of a pilot program to allow employers to establish an apprenticeship program for 18-, 19-, and 20-year-old drivers to operate commercial vehicles on the interstate system pursuant to the Infrastructure Investment and Jobs Act.

The U.S. Department of Energy and U.S. Department of Transportation, for example, recently solicited public comment on supply chain challenges that may impact the build out of electric vehicle charging infrastructure.

On January 14, 2022, the Department of the Interior entered into a memorandum of understanding with the Department of Agriculture, the Environmental Protection Agency, the Department of Energy, and the Interstate Oil and Gas Compact Commission to implement the Orphaned Well Site Plugging, Remediation, and Restoration program established under the Bipartisan Infrastructure Law. On January 31, the Department of the Interior announced that it will begin making up to $1.5 billion available to states as part of a new grant program to close and clean up orphaned wells and that additional guidance and funding opportunities will be released in the coming months.

On Jan. 19, 2022, the U.S. Department of Energy published a notice announcing its Building a Better Grid Initiative to help implement the directives under the bipartisan infrastructure law.

Conclusion

The time is now to track infrastructure funding at the federal and state level to determine where, and how, it creates business opportunities. As 2022 moves on, the federal government will be adding additional funding to grant and contract programs, creating new programs, rules and regulations pertaining to the funding and sending more out to the states to start putting out requests for proposal and other solicitations to the private sector to bid on and win infrastructure contracts.

Crowell, with its deep understanding of the federal grant, contracting and regulatory processes, is closely tracking the implementation of the Infrastructure Investment and Jobs Act to help clients navigate the unprecedented levels of infrastructure funding and development expected to take place across the country over the next five years. The Crowell Infrastructure Team – which is composed of lawyers and policy professionals from the firm’s Government Affairs; Government Contracting; Transportation; Corporate; Mass Torts, Products and Consumer Litigation; Aviation; and Environment, Energy and Natural Resource practices – stands ready to assist in monitoring, tracking, and advising on infrastructure developments at the federal and state levels so that you can make business decisions that are good for your company based on the latest information and actionable intelligence.