Home | Accelerating Project Delivery During Detailed Design/Construction

Accelerating Project Delivery During Detailed Design/Construction

Once the NEPA process in concluded and a record of decision is issued, a project may move to the Detailed Design/Construction Stage, which includes detailed design (including environmental permits), right-of-way acquisition, utility relocation, contracting, and construction. States strive to deliver projects within budgets and on schedule while facing daunting demands—thousands of plan sheets for detailed roadway and bridge design, hundreds of parcels of real estate to acquire, dozens of utility lines to relocate, dozens of environmental permits and agreements to secure, thousands of pages of contract documents to prepare, and hundreds of millions, if not billions, in construction dollars to manage.

The goal is to “get it right the first time,” since the consequences of mid-course corrections or mistakes can be huge. Delays during detailed design and construction may put property owners in limbo for years while they wait for right-of-way acquisition, yet they cannot sell or improve their property. Delays during this stage may also cause detailed plans to need to be re-drawn, involving months (if not years) of additional delay and millions of dollars in wasted effort. Delays during construction can include unexpected utility problems, which may bog contractors down while workers and equipment sit idle.

Working “At-Risk” Can Advance Construction

On Federally-funded projects, decisions to proceed with detailed design and construction activities prior to the issuance of a ROD are “at risk,” in terms of their eligibility for Federal funding if changes are made to the point of nullifying the “at-risk” work performed. This is a strategic and pivotal point in the life of transportation projects where preferred and selected alternatives are frequently identified as much as a year or two prior to the formal Record of Decision. The dilemma posed is very simple: Should the detailed design/construction stage be initiated in advance of the record of decision when preferred alternatives are identified at the draft environmental document phase or when selected alternatives are identified at the final document phase. While putting Federal funds at some risk, if the probability is high that preferred or selected alternatives will be approved with the record of decision, the benefits of a major schedule acceleration opportunity may outweigh the risk. Clearly it is a matter of assessing, weighing, and managing these risks.

In the detailed design/construction stage, work occurs in the distinct phases of right-of-way, utilities, detailed design, contracting, and construction. Environmental permitting, which is discussed in the design section, is clearly a cross-over phase that must begin in the planning/environmental stage with impact assessment and mitigation options identified, but final permits are dependent on the details of final design. None of these phases involves activities that can successfully be performed in isolation and environmental permitting is an excellent example. While the need for greater integration and forward collaboration cannot be overstated, nowhere is this more true than in the relationship between detailed design and construction.

Accelerating Right-of-Way Acquisition

Right-of-way acquisition is often considered one of the top three sources of transportation project delay, along with environmental processes, and utility relocation. Right-of-way personnel are frequently caught in an ever shrinking time window, waiting for the designer to confirm what properties to acquire, and then having to secure rights-of-way by a fixed date so that construction can begin. In addition, if condemnation is required under eminent domain, they are often at the mercy of an overburdened judicial system. Nevertheless, right-of-way staffs around the country have succeeded in a variety of ways to avoid the hot-seat of critical path delays with such strategies as:

Streamlining internal right-of-way practices in terms of contacts with property owners, appraisals, appraisal review, negotiations, relocation assistance, and implementing settlements.
Acquisition of total takes on a negotiated basis by deed description rather than meets-and-bounds plats.
Protective buying and hardship acquisitions where long-range land use and transportation plans show rights-of-way for planned future improvements and these properties are threatened by development or owners may be suffering a hardship due to restrictions that impair their ability to use or sell their property.
Reducing eminent domain cases through policies that encourage greater flexibility in negotiating with property owners.

There are several areas of opportunity for the right-of-way acquisition process to go faster:

Permitting concurrent right-of-way acquisition during construction; and
Re-structuring Federal and state processes to permit earlier acquisition of properties.

Concurrent Right-of-Way and Construction: Though there are risks involved, there are times when it makes sense to consider advertising or awarding projects before right-of-way has been fully acquired. This process could include placing right-of-way availability dates into the request for bids so that the project can proceed around the pending acquisitions. This process allows traditionally sequential processes to overlap, thus saving time. However, this process is still the exception, not the rule.

Recommendation: Concurrent Right-of-Way and Project Awards

FHWA should recognize a concurrent approach to construction and right-of-way acquisition as a legitimate option when the justification, risks, and risk-management actions have been adequately addressed.

Advanced Acquisition for New Facilities: Perhaps the most significant potential to accelerate project schedules and reduce costs involves encouraging greater corridor preservation through advanced right-of-way acquisition without undermining planning and environmental processes. This is a major opportunity which the Commission may wish to emphasize.

Advanced acquisition of future rights-of-way generally reduces time and costs, as well as the disruption to property owners and communities where a corridor containing private land is designated in a long-range plan. Where properties are undeveloped but potential community-compatible uses exist, the land could be leased on an interim basis for uses such as landscape nurseries, outdoor storage, parking, or recreation. In addition, there are alternatives to outright acquisition that may mitigate the impacts of taking property off the tax-rolls and creating large tracts of under-utilized land. An example of this would involve purchasing “development rights” in a corridor years in advance of a project, which limits the land to its current use but precludes future development until the land is needed for the intended transportation use.

Photo courtesy of New Mexico Department of Transportation. Acquiring sufficient right-of-way for future expansion can save time and money, a major opportunity for project acceleration in future years.

Currently, the ability to use Federal funds for corridor preservation is severely restricted. Until the NEPA process is completed for a transportation project, Federal funds can only be used to acquire individual parcels that meet the definition of “hardship” or “protective” acquisitions. Because these exceptions are relatively narrow, it is difficult to protect a continuous corridor until after the NEPA process is completed for the entire project. As a minimum, it should be possible to expand advanced acquisition to all willing sellers rather than just protective and hardship purchases.

Compounding the problem of not being able to acquire right-of-way for projects without an approved environmental document is that, in practice it is often difficult to justify preparing an environmental document for a project that won’t be constructed for a decade or more into the future. In fact, FHWA often won’t agree to participate in conducting the NEPA process for projects that are too far in advance of anticipated construction. This creates a “Catch 22” situation in which a Federally-approved environmental process must be completed before right-of-way can be protected through acquisition, but projects that are way off in the future cannot justify the early initiation of required environmental impact assessments.

Some States, such as Illinois, have laws that facilitate corridor preservation by allowing the state—through its planning process—to adopt a map showing the route for a proposed transportation corridor. This designation provides a basis for the state to begin acquiring land well before the corridor is developed. This designation also provides a basis for local governments to coordinate their land use plans with the location of the future transportation corridor.

Recommendations on Corridor Preservation

Corridor preservation by states should be supported and encouraged by the dissemination of best practices and model legislation. New ways, including legislation if necessary, should be found to enable Federal funds to be used for preservation of transportation corridors. The Federal requirements (e.g., NEPA) should not be interpreted in ways that discourage corridor preservation.
States should have the flexibility, using their own funds and Federal funds, to acquire right-of-way well in advance of project construction if the viability of a project would otherwise be threatened. Experience has shown that having appropriate right-of-way in advance does not compel a project to be built, but not having needed right-of-way can create massive disruption and can be the death knell of a project.

Advanced Acquisition for Facility Expansion: Part of corridor protection involves the need for and the ability to acquire sufficient right-of-way to allow for future expansion. Environmental laws today require transportation planners to minimize impacts. In practice, this means there is strong pressure to acquire as narrow a right-of-way as possible—and only that right-of-way associated with the record of decision. While motivated by legitimate environmental concerns, this approach tends to discourage—and even prevent—the prudent acquisition of sufficient right-of-way to allow for long-term future widening.

Recommendation on Right-of-Way for Future Expansion

Action is needed to ensure that the legal authority exists to acquire rights-of-way that will accommodate not just the immediate needs addressed by NEPA, but also the expansion that may be needed over the life of the facility, as included in adopted long-range plans. When it comes to acquiring rights-of-way, transportation departments need a 50-to-100 year time horizon, not the 20–30 year horizon associated with most project development.

There are also financial obstacles to preserving transportation corridors. As a practical matter, most states lack the resources to make the investment in preserving future corridors, even though the long-term savings may be clearly demonstrated. The use of revolving funds—possibly at a national level—should be pursued to address what are often “penny wise and pound foolish” right-of-way acquisition practices.

Recommendation on Creation of Revolving Fund Corridor Protection Bank

The use of Federal funds should be allowed for a revolving fund “bank” that all states could draw upon to invest in transportation corridor protection.

SAFETEA-LU’s requirements and opportunities for greater linkage of the planning and NEPA processes offers perhaps the best possibility to address the concerns of those who would say that corridor protection through advanced right-of-way acquisition threatens the integrity of the NEPA process. This is particularly true where state DOTs, through their involvement in statewide and metropolitan planning and in their ongoing relationships with U.S. DOT and environmental resource agencies, are able to successfully link planning and NEPA processes. Specifically, this means that decisions at the planning stage on purpose and need, land use, modal preference, and potentially, the likely corridor alignment of a transportation facility, will have standing under NEPA. This will provide a strong case that corridor protection through advanced right-of-way acquisition and NEPA are not incompatible.

There is a need for clear policy starting at the Federal level—within U.S. DOT and in statutes and regulations—to encourage corridor protection using a variety of tools.

Recommendation on Barriers to Right-of-Way Acquisition

Barriers and restrictions in the legal, legislative, and regulatory arenas that hinder the expedient acquisition of right-of-way should be removed, while preserving the environmental integrity of the communities in which facilities are planned.

Utility Relocation a Top Cause of Project Delay

Utility relocation enjoys the dubious distinction of being among the top factors that transportation professionals cite as causes of project delays. It is the rare major transportation improvement that does not have significant utility relocation needs, even in rural areas where the preponderance of improvements are along existing transportation facilities. In urban situations, the complexity of dealing with multiple utilities under multiple ownerships, with multiple “prior rights” possibilities, provides fertile ground for significant project delays.

Over the years, state DOTs have made improvements in addressing utility relocation issues through improved relationships with utilities, subsurface utility engineering which allows agencies to obtain reliable underground utility information and to manage that information throughout the highway project; advanced relocation of utilities; integration of utility relocation and transportation facility construction; and incentives and penalties for completing relocation work on or ahead of schedule.

However, many challenges still exist.

State transportation departments have little or no administrative powers over utility companies that fail to relocate and clear utility conflicts to meet the project schedule. A history of transportation projects being shelved or postponed during the development process has caused many utility companies to be reluctant to commit funds for utility relocation until there is certainty that the project will be constructed. In many cases, the state transportation agency does not have authority to pay for the utility relocation, so it needs to be performed at the utility’s expense; therefore, it becomes a lower priority for the utility company.

SHRP2: One of the four priority areas in the second generation of the Transportation Research Board’s Strategic Highways Research Program (SHRP2) is the rapid renewal of infrastructure. Two priority SHRP2 research projects deal with utilities.

Utilities Location Technology Advancements—research into new technologies to further enhance the reliability of Subsurface Utility Engineering (SUE); and
Strategies for Integrating the Priorities of Utilities and Transportation Agencies in Highway Renewal Projects—finding ways to improve the utility coordination process.

Coordinated Transportation-Utility Corridors: Traditionally, on controlled-access facilities, utilities have not been permitted to encroach on state rights-of-way. The exception has been fiber optic telecommunication lines, which have been permitted by FHWA and states, largely because the DOTs utilize the bandwidth often provided to them as part of a negotiated arrangement for operational purposes such as ITS (Intelligent Transportation Systems) applications or other public sector uses.

The recent Trans-Texas Corridor initiative includes provision for utility rights-of-way as part of an integrated package, presumably with access for utility service vehicles that poses no safety issues. It is too early to tell how well this approach will work, but it bears watching as a possibility for the increasingly rare cases where new access-controlled transportation facilities are planned and constructed on new rights-of-way.

Recommendation: Implementation of Research

The utilities-related research products under SHRP2 should be supported and the kind of innovation that is reflected in the utilities portion of the Trans-Texas Corridor project should be encouraged.

Dean Koepﬂer/The News Tribune, Tacoma, WA/2006. Reprinted with permission from The News Tribune, Tacoma, WA. Ironworker Jerry Kerr of Olympia takes a coffee break from construction high atop the Tacoma Narrows Bridge in Washington State.

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