There are a variety of other SAFETEA-LU provisions that will encourage greater private sector involvement in highway infrastructure projects. These provisions include:
• High Occupancy Vehicle (HOV) Lanes -- SAFETEA-LU enhances and clarifies provisions governing the use and operation of HOV lanes. States are required to establish occupancy requirements for HOV lanes, with mandatory exemption for motorcycles and bicycles unless it creates a safety hazard, and optional exemptions for public transportation vehicles, low-emission and energy-efficient vehicles, and High Occupancy Toll (HOT) vehicles (otherwise-ineligible vehicles willing to pay a toll to use the facility). States are required to monitor, assess, and report on the operation of the facility to ensure that it does not become seriously degraded.
• Environmental Review Process -- A new environmental review process is established for highways, transit, and multimodal projects. A new category of "participating agencies" is added, to allow more state, local, and tribal agencies a formal role and rights in the environmental process. After providing an opportunity for public and interagency involvement, DOT will define the project's purpose and need, and establish a plan for coordinating public and agency participation. As early as practicable in the process, DOT is to provide an opportunity for a range of alternatives to be considered for a project. If any issue that could delay the process cannot be resolved within 30 days, DOT must notify Congress. A 180-day statute of limitations for lawsuits challenging Federal agency approvals is provided, but it will require a new step of publishing environmental decisions in the Federal Register. This statute of limitations will help to provide greater certainty with the environmental process.
• Section 4(f) - This provision prohibits projects on publicly owned parks, recreation areas, wildlife and waterfowl refuges, or historic sites unless there is no feasible and prudent alternative and all possible mitigation is used. SAFETEA-LU includes tightly circumscribed changes in 4(f). Under SAFETEA-LU, the Secretary has some flexibility to allow an exemption from 4(f) requirements if a program or project will have a "de minimis" impact on the area - i.e., there are no adverse effects of the project and the relevant State Historic Preservation Officer or other official with jurisdiction of a property concurs. The provision creates public involvement and consultation responsibilities associated with the de minimis determination. The Secretary is to conduct a rulemaking to clarify the 4(f) standard of "prudent and feasible" for alternatives. The Interstate System is exempted from being treated as an historic resource under Section 4(f), unless the Secretary determines that individual elements posses national or exceptional historic significance and should receive protection.
• State Assumption of Environmental Review Responsibilities - After entering into a Memorandum of Understanding with the Secretary, each State may assume responsibility for categorical exclusions, with FHWA in a programmatic monitoring role. Another provision calls for the Secretary to establish a categorical exclusion, to the extent appropriate, for activities that support the deployment of intelligent transportation infrastructure and systems.
The States of Alaska, Ohio, Oklahoma, Texas, and California can enter into a project delivery pilot program, allowing them to apply to the DOT to assume all DOT environmental responsibilities under NEPA and other environmental laws, excluding the Clean Air Act and transportation planning requirements. This delegation authority is limited to highway projects, and could be for specific projects within a State or a programmatic delegation.
Under another pilot program, the Secretary may allow up to five States to assume environmental responsibilities, including NEPA and Section 4(f), for Recreational Trails and Transportation Enhancement projects.
• Design-Build -- To encourage more projects to use design-build contracting, SAFETEA-LU eliminates the $50 million floor on the size of eligible contracts. Also, the DOT Secretary must issue revised regulations that will allow transportation agencies to proceed with certain actions prior to receipt of final NEPA approval. This change will encourage public-private partnerships by allowing private sector partners to be involved in the project definition process.
• Highways for LIFE Pilot Program -- To foster the use of new technologies and more efficient ways of building highways, this pilot program calls for the DOT Secretary to provide leadership and incentives to demonstrate and promote state-of-the-art technologies, elevated performance standards, and new business practices in the highway construction process that result in improved safety, faster construction, reduced congestion from construction, and improved quality and user satisfaction. A total of $75 million is authorized through 2009 for incentive grants, to fund up to 20% but not more than $5 million of the total cost of a qualifying project. A maximum of 15 projects may receive incentive funds in a given fiscal year, but the goal is to approve and provide funds to at least 1 project in each State by 2009. A State may also use up to 10% of its Interstate Maintenance (IM), National Highway System (NHS), Surface Transportation Program (STP), and Congestion Mitigation and Air Quality Improvement Program (CMAQ) funds for these projects; up to 100% Federal share is allowed.