The real legacy of the $286.4 billion highway bill, officially called the Safe, Accountable, Flexible, Efficient Transportation Equity Act for the 21st Century – A Legacy for Users (SAFETEA-LU), has been largely missed and ignored by the general media, politicians, and organizations. While they feast on the transportation construction that will now move forward, the jobs that will be created, as well as the ridiculous ‘pork’ projects included in the legislation, some experts believe that the biggest impact of this bill is a 20-page section that will determine the future of transportation projects beyond 2009.

While Section 1909 of SAFETEA-LU, entitled Future of Surface Transportation System, represents just one of over 400 sections in this 1,000-plus page document that contains more than 6,300 special projects, it very well could be the most important policy component of this legislative measure.

Transportation Policy and Revenue Commission
By now, most of the country – including those of us in the land development industry – has heard of BRAC, the commonly used acronym for the formal name of the Defense Base Closure and Realignment Commission. The 2005 BRAC Commission is an independent entity that was authorized by Congress through the Defense Base Closure and Realignment Act of 1990 (P.L. 101-510), as amended. It will be submitting its findings and recommendations to the President of the United States on or before September 8, 2005.

Section 1909 establishes a National Surface Transportation Policy and Revenue Study Commission. While this commission will not be closing any highways or bridges, it will have a very wide scope of responsibilities that will become a significant indicator of the direction and role of the federal government in transportation policy.

“The commission is tasked with studying the surface transportation needs of the country,” relates Dr. Joshua Schank, a government transportation policy analyst with ICF Consulting, “but the real interesting aspect is that this commission is also charged with looking into the financial components as they relate to the country’s needs. It is universally acknowledged that the current Highway Trust Fund that is supported by gas-tax revenues will face major revenue shortfalls in 2009.”

Indeed, the 12-member commission will be asked to conduct a comprehensive study of:

the current condition and future needs of the surface transportation system;

short-term sources of Highway Trust Fund revenues;

long-term alternatives to replace or supplement the fuel tax as the principal revenue source to support the Highway Trust Fund, including new or alternative sources of revenue;

revenue sources to fund the needs of the surface transportation system over at least the 30-year period beginning in 2005, including new or alternate sources of revenue;

revenues flowing into the Highway Trust Fund under laws in existence as of 2005, including individual components of the overall flow of the revenues; and

whether the amount of revenues are likely to increase, decrease, or remain constant absent any change in law, taking into consideration the impact of possible changes in public vehicular choice, fuel use, and travel alternatives that could be expected to reduce or increase revenues into the Highway Trust Fund.

Following its extensive study, the commission must develop a conceptual plan – with alternative approaches – to ensure that the U.S. surface transportation system will continue to meet current and future needs, including specific recommendations regarding design and operational standards, federal policies, and legislative changes.

It is made clear that this must be done through consultation with the Secretary of the Treasury as well as the state departments of transportation and various other key planning and interested stakeholders.

“The results of this study and report could be very interesting,” claims Schank. “I wouldn’t be surprised to see some major surprises and suggested changes that could be considered radical.

“For instance, instead of Congress trying to fund projects with the gas tax, we may see an increased emphasis on tolling with individual states being responsible for funding more of their own highways. Of course,” concludes Schank, “this will not sit very well with many state governments.”

Circle This Date
The Commission is required to submit to Congress a final report with detailed findings, conclusions, and recommendations for legislative and administrative actions no later than July 1, 2007.

Other SAFETEA-LU Provisions
There are a couple of other components to the new highway bill that will impact land development professionals.

There has been some environmental streamlining, perhaps most notably Section 4(f) requirements.

The American Council of Engineering Companies (ACEC) lists the following as the most important provisions:

Environmental Streamlining
Establishes USDOT as the lead agency and further defines agency roles and responsibilities to establish decision timeframes

Provide a 180 day statute of limitations against lawsuits challenging a project decision

Delegate substantial environmental decision-making authority to states

Provide important Section 4(f) reforms for projects affecting historic sites or parklands

Exempts the Interstate System from consideration as a historic resource

Engineering Procurement
Provision in the final bill shuts down the authority of project sponsors to adopt an alternative QBS process on future transit projects

Innovative Project Delivery
Includes numerous bonding and tolling provisions that allow private entities to finance, build, own, and operate transportation facilities
Includes the Highways for Life program that seeks to enhance the ability of the private sector to save time and costs by delivering projects in innovative ways  SLDT