Sharing Corridors Is Key in High-Speed Rail Planning

Posted on April 1, 2001 by Robert C. Pearman, Robinson & Pearman LLP

The recent interest in and funding for high-speed rail (HSR) in the United States is a welcome one for its long-time adherents. But the long lead times to bring such projects to fruition necessitate an early understanding of and strategy regarding the shared use of existing transit corridors (rail and highway) as a key component of the right-of-way (ROW) acquisition needs for proposed HSR projects. The ownership of such corridors may currently lie in a variety of public entities, commuter rail authorities, state highway departments and, importantly, freight railroads. A number of projects under consideration, where existing corridors are convenient for passengers and embrace large population centers, may have established infrastructure necessary for the project and already satisfy certain land use requirements and entitlements. Moreover, there may be significant cost savings from the use of existing corridors vs. acquiring the hundreds of miles of real property the project may need. The amount required for ROW can be in the billions of dollars. For instance, the recent California High Speed Rail Authority (CHSRA) final business plan suggests ROW costs of more than $2.3 billion for steel-wheel on steel-rail HSR beyond its 700-mile length. This article examines the consideration of accessing and sharing existing corridors for HSR, the design/engineering/operational effects of such shared use and the relevant Federal Railroad Administration (FRA) and other applicable legal guidelines. It also provides suggestions for a strategic approach, beginning with the HSR planning process, to maximize the use of existing ROW. The cost of acquiring HSR operating capacity within existing transit corridors may include both monetary and other types of consideration. Undoubtedly, freight line owners will charge for any significant shared use. While freight railroads are recently more open to sharing corridor and rights-of-way with other transit operators, that is most achievable when there is excess capacity. Even then, the majority of necessary capital improvements was paid for by the sharing, or the public transit, entity. A novel approach to consider would be: as new corridors are developed by the HSR agency in one part of a state, allow a freight rail company to share that corridor in return for the high-speed rail authority obtaining access to the railroad’s ROW elsewhere in the state. Public entity owners, including commuter lines and state transit agencies, in some cases may not charge a fee for shared use. In fact, the CHSRA assumed about 15% of the ROW cost would be donated. Except where it is clearly excess, unneeded property, or perhaps where necessary operational rights and easements can be retained, public entity owners are not as likely to convey property outright and may lease or grant rights to an HSR agency. Owners of existing transit corridors may seek a host of improvements and betterments in connection with allowing any shared use in addition to ensuring that some of the promised benefits of the HSR project are achieved. Examples of upgrades that may be demanded include:

  • Service upgrades, including providing overhead catenary system facilities for the benefit of the existing rail owner.
  • Safety upgrades beyond those that simply track FRA requirements. Also cathodic protection for utility facilities due to electrification.
  • Capacity upgrades to preserve the ability to later double or triple track. The HSRA may be asked to make all accommodations in the future for owners’ expansion needs, such as agreeing to relocate portions of the system or later pay for and acquire extra ROW if needed. Benefits of shared use Many of the ancillary impacts of the HSR project can benefit others’ transit operations. Advanced technology signal systems and related items may not necessarily enhance the safety and operations of the co-user; but improved strength of joint use bridges, upgraded track bed-rail, ties and ballast, advanced automatic train control (ATC) and interlocking equipment may. Strengthened corridor intrusion systems may bring safety advantages to the co-user as well. Opportunities may exist for the locality/freight owner to benefit from funding sources available only to/ through HSR, including federal grade crossing monies. Other rail operators can gain from operational efficiencies of lessened curves and altered gradations for higher speeds and from the elimination of certain at-grade crossings. Other benefits include the sharing of information on travelers and customers, joint marketing activities between passenger transit systems and HSR and increased ridership via the mutual feeding of potential passengers and customers. There may also be increased utilization and return on existing ROW and other assets and sharing of maintenance of ROW expenses. Local governments and public owners of transit corridors may additionally be benefited by the preservation of tax revenue for localities if the public HSR agency can use existing public land already off the tax rolls vs. acquiring privately held land and removing it from the tax rolls. HSR may aid in providing overall societal and economic development benefits, such as meeting regional clean air attainment goals. Burdens of shared use Nevertheless, some impacts of an HSR project may reverberate negatively with existing owners and users. The project can potentially restrict growth and expansion opportunities. Growth would need to be taken into account in any agreement with existing owners, and restrictions caused by the presence of HSR may prove unacceptable to freight railroads. Limited parcel freight and commuter operations by HSR may create a perceived or actual degree of competition with existing service providers. The HSR agency might allow such operations to be supportive and complementary by contractually assigning to the current operator some performance aspect of services it initiates. That can include maintenance or conductors, or coordinating freight railroad access to new ROW developed by the HSR agency in areas of the state where existing freight corridors are less efficient. Coordination agreements will be needed as a result of the shared use to reflect the need to integrate HSR with other transit services. Coordination and cooperation agreements may arise to govern marketing, schedule coordination, ticketing and fare coordination, signage and design criteria for transit stations. Other burdens include the costs of negotiations, construction and operational impacts, the perceived institutional complexity of dealing with an HSR agency (a new and unproven entity), possible imposition on the freight operator of new environmental protection statutes as a result of the presence of HSR and a traditional reluctance to sharing ROW. Knowing the legal issues The FRA will play a key role in shaping the legal environment relative to shared use. Other significant entities involved may include the Federal Transit Administration (FTA), state public utilities commissions and state transit agencies. The recently promulgated Passenger Equipment Safety Standards by the FRA are notable. At present, the standards do not govern speeds of more than 150 mph, though an ongoing working group conceivably could give consideration to standards for such speeds. Recently, the FRA and FTA enacted policies and rules dealing with the shared usage of rail corridors in an effort to clarify applicable authority and perhaps be more accommodating of such shared use. In addition to joint policies they commonly adopted [64 FR 28238 (May 25, 1999), amended 65 FR 42526 (July 10, 2000)], FRA set forth its own statement of policy concerning such safety issues [65 FR 42529 (July 10, 2000)]. But those policies dealt with the intersection of freight and light rail lines or other rapid transit systems, not HSR. Nevertheless, at this point it appears HSR would be subject to traditional concepts of railroad safety standards, with any flexibility to accommodate HSR grudgingly, if at all, granted. Florida Overland Express (FOX) sought particular rules applicable to it [proposed 49 CFR Part 243 at 62 FR 65477 (12/12/1997)]. Because of the cessation of FOX activities, that particular rule-making effort became dormant, and despite the recent Florida referendum mandating a high-speed ground transport system, its revival seems a long way off. The FRA is concerned with safety issues related to very high-speed rail (150 mph and higher), and it seems likely to require a detailed examination of any proposed system along with particularized safety rules, a la the FOX effort. The presence of freight traffic on the same corridor, even if it’s not operating on the same track and with barriers between, will add to heightened FRA scrutiny and requirements. Applicable state laws would include those dealing with required permits for use of state highways and public utility commission regulatory authority regarding grade separations. A new High Speed Rail Investment Act was also unveiled earlier this year that lets Amtrak sell $12 billion in bonds (rather than the $10 billion proposed when the act was first introduced in 1999) over 10 years. A 20% state match must be in place before bonds can be sold for a project and bondholders would get federal tax credits rather than interest payments. There is a $3 billion cap on the amount any one corridor can receive. There is a $1 billion cap on the amount that can go to lines other than the Northeast Corridor and corridors that the U.S. Department of Transportation designated under the Intermodal Surface Transportation Efficiency Act and the Transportation Equity Act for the 21st Century as high-speed rail corridors. Making a separation Any HSR project needs to be planned in such a way that its construction and operations do not unreasonably and adversely impact the existing corridor users. Compared to conventional systems, HSR may require increased track separation requirements to lessen the possibilities of and impacts from accidents with adjacent user vehicles. The HSR needs to create sufficient vertical or horizontal separation with barriers and intrusion protection. In any case where the FRA permits a crossing with other rail or auto/pedestrian crossings (perhaps near dense urban station areas), HSR may have to demonstrate “positive separation.” That means using such things as sophisticated signal and switching systems, video cameras, heightened warning alerts and slower than optimum speeds near crossing areas. Common dispatching and signaling arrangements will have to be negotiated and the HSRA may need to lessen curvatures and alter gradations to permit the higher speeds desired. Things to consider Shared use may not always be the most cost-effective due to high acquisition costs or high grade separation costs if the existing corridor has numerous crossings and inappropriate curvatures and grades. Preliminarily, any HSR agency must undertake factual investigation of potential rail corridors to determine the practical availability of shared use. Factors to be explored include:
  • Whether existing ROW has the necessary dimensions to support not only the new rail, but desired utility and fiber optic easements and necessary vertical clearances.
  • Whether relocation within a corridor of existing track is necessary to accommodate shared use.
  • Whether the existing users have plans for expansion or double tracking that would eliminate the availability of “excess” ROW width in the future.
  • Whether existing ROW owners already have fiber optic conduits in place with available excess capacity to accommodate the HSR needs. The prospect of receiving donated ROW may occasionally be realistic with respect to a public entity owner, but is unlikely with respect to freight railroad-owned ROW. The costs of acquisition may include the HSR agency sharing in the cost of service upgrades for existing rail and transit facilities, capacity upgrades and other betterments that may be requested by the ROW owner. Financial plans should reflect that, even in the case of donated or below cost conveyance of ROW by existing corridor owners, a price would need to be paid for capacity upgrades, safety improvements and other enhancements dictated by the current owners/users. The decision to undertake shared use, even though within fully grade-separated, exclusive guideway operation, may bring the system in proximity to freight and other traffic that will trigger heightened FRA safety requirements. Such regulatory burdens could lessen operational efficiency and increase costs due to FRA concerns about potential safety hazards when HSR operates in or near other vehicular traffic, particularly U.S.-style heavier freight trainsets.
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