USA Law and Practice Contributed by: John D. O’Neill, Jr., David B. Horner, Andrej Micovic and Ryan Pedraza, Hunton Andrews Kurth LLP
ger rail corridors also exist, particularly in urban and regional transit systems. Because the United States does not mandate open- access rail operations, access rights are governed primarily by federal law, regulatory oversight and commercial agreements rather than a comprehensive infrastructure access regime. As a result, rail projects often require extensive negotiation with host railroads regarding capacity, dispatching, maintenance respon - sibilities and operational priorities. 4.3 Access Rights and Charges Access rights and charging mechanisms differ sub - stantially between road and rail infrastructure. Road infrastructure is available for public use on a non-discriminatory basis. Access charges arise only where toll facilities are involved. Toll rates are estab - lished pursuant to applicable statutes, concession agreements, financing documents and regulatory requirements. In P3 projects, toll-setting authority may be retained by the public authority or delegated to the concessionaire depending on the transaction structure. Rail access is governed through a combination of fed - eral regulation and commercial arrangements. Freight railroads control access to their privately owned net - works and negotiate operating rights, trackage rights and other access arrangements with other carriers. The STB retains authority to address certain access disputes and competitive concerns, although com - mercial negotiation remains the primary mechanism for establishing access rights. Access charges in the rail sector are therefore usu - ally commercially negotiated rather than established through a comprehensive regulatory tariff system. 4.4 Toll Roads and Concessions Toll road concessions are primarily governed by state law and represent the most mature form of transporta - tion P3 in the United States. States including Virginia, Texas, Florida, Georgia, Tennessee, Colorado and Maryland have developed legislative frameworks that permit long-term concession agreements for trans - portation infrastructure.
Most US toll road concessions fall into two principal categories. Under a revenue-risk concession, the con - cessionaire finances the project and is repaid primar - ily through toll revenues. Examples include the I-66 Express Lanes, SR 400 Express Lanes, I-495 Express Lanes, LBJ Express, North Tarrant Express and Eliz - abeth River Tunnels projects. Under an availability- payment concession, the public authority retains toll revenues and compensates the concessionaire based on facility availability and performance. Examples include the I-595 Corridor Improvements Project, Port of Miami Tunnel and Central 70 Project. Concession agreements allocate responsibility for design, construction, financing, operations and maintenance while establishing detailed performance standards, handback requirements, change-in-law protections, lender rights and termination compensa - tion mechanisms. Concession terms commonly range from approximately 30 to 75 years depending on the project’s financing requirements and risk allocation structure. From an investor perspective, the United States toll road market remains one of the most developed trans - portation P3 markets globally, although activity is con - centrated in a relatively small number of states with established statutory authority and political support Major transportation expansions and infrastructure upgrades require a combination of federal, state and local approvals. The specific approvals depend on the nature of the project, its location and the sources of project funding. Projects involving federal funding, federal permits or federal approvals are subject to review under the NEPA. Additional approvals may be required under the Clean Water Act, Endangered Species Act, National Historic Preservation Act and other environmental statutes. Rail projects may also require approvals from the FRA, STB or FTA, depending on the project structure. State transportation agencies frequently require sep - arate design approvals, permitting reviews and pro - for private-sector participation. 4.5 Expansion and Upgrades
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