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Why Congress Should Permanently Authorize FAST-41

The Brief
  • Permitting reform is ripe for bipartisan collaboration, with consistent support from both sides of the aisle.
  • FAST-41 is an important and proven part of a government-wide effort to improve predictability, transparency, and accountability in the permitting process.
  • It created a centralized dashboard to catalog and track project approvals and established a voluntary option for coordinated, multiagency reviews of complex, high-priority projects.
  • Despite early evidence demonstrating FAST-41 significantly reduces timelines for project approvals, its provisions are not permanent and are set to expire in 2022 unless legislation—such as S. 2324, the bipartisan “Federal Permitting Reform and Jobs Act,” is passed to permanently authorize FAST-41.

Background

The federal permitting and environmental review process has long been plagued by a lack of transparency and accountability. Stakeholders lack confidence in project milestones, and there is limited ability to track infrastructure projects as they move through the process. Weak coordination among federal agencies has also been a major issue. The lengthy and complex permitting and environmental review processes can add to projects’ time and cost, while deterring private capital from investing.

Title 41 of the Fixing America’s Surface Transportation Act of 2015, known as FAST-41, sought to address these issues. Project sponsors can request to participate in a process which provides for coordinated and expedited multiagency reviews, so long as they abide by FAST-41 requirements. FAST-41 also created a Permitting Dashboard to increase transparency, listing federal projects with a timetable for when permits will be approved. Additionally, FAST-41 established the Federal Permitting Improvement Steering Council (FPISC) to improve interagency coordination and reduce timelines for project approvals.

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FAST-41 Generic Permitting Timetable

The FAST-41 process begins with a consultation, followed by a determination as to whether the proposed project is eligible—or “covered”—under the law. Within 60 days, a permitting timetable is released including a delineation of all required permits, reviews, and approvals and target dates for achieving them.

Source: Federal Permitting Improvement Steering Council 

In the example below, the Permitting Dashboard highlights the length and status of nine separate federal approvals, their status, and the overall project timetable for a large, innovative coastal restoration project in Louisiana.

Source: Federal Infrastructure Projects Permitting Dashboard 

FAST-41’s Benefits

FAST-41 has brought substantial, concrete improvements to the permitting and environmental review process:

Transparency and predictability: The Permitting Dashboard provides an easily accessible resource so all stakeholders can track projects as they make their way through multiple reviews. With a clear understanding of the process and timelines, project sponsors—and the general public—can more effectively anticipate the start date. Under FAST-41, the final completion date for reviews cannot be pushed back more than 30 days without consulting the project sponsor.

Interagency coordination: FPISC harmonizes the process for permits across multiple agencies to encourage resource-sharing and avoid duplication, requiring relevant agencies to submit a comprehensive project plan and timetable to complete all necessary approvals. According to FPISC’s annual report to Congress for fiscal year 2020, FAST-41 reduced timelines by 45% to complete an environmental impact statement (EIS). The average FAST-41 project took about 2.5 years to complete an EIS, compared to 4.5 years for the average EIS duration from 2010-2018. One project saved up to $12.6 million as a result of time savings.

Accountability: FPISC has a mandate to hold agencies responsible for adhering to review timelines and mediate any disputes. The council must also report significant delays to Congress as well as annual reports that assess agencies’ progress in implementing best practices and performance schedules.

Stakeholder Participation and Reasonable Limitations to Judicial Delays: FAST-41 requires those that might file a NEPA challenge to first participate in the permitting process by commenting during the environmental review process. It also reduces the statute of limitations for challenging covered projects’ authorizations from six years to two years.

Dispute Resolution: Complex projects often require approvals from multiple agencies—each with different, and sometimes competing, priorities and statutory and legal responsibilities. Disputes between these different agencies can significantly delay projects. FAST-41 empowers FPISC’s Executive Director to resolve disputes, particularly when agencies are unable to agree on a timetable. If this mediation is unsuccessful, the Office of Management and Budget makes a final decision, ensuring permitting timetables and milestones are met.

Maintaining Standards: FAST-41 does not change any underlying regulations or reduce the rigor of required agency reviews, focusing instead on transparency and coordination. Therefore, its provisions improve the process without undermining environmental, safety, and other protections.

Currently, 29 projects in the dashboard have completed the FAST-41 review process, with more than 20 planned or in process. In total, FAST-41 projects represented $209 billion in economic investment and 136,000 permanent and temporary construction jobs.

Source: Federal Infrastructure Projects Permitting Dashboard 

BPC Recommendations

Permitting reform is an issue ripe for bipartisan collaboration. FAST-41 has seen consistent support from both sides of the aisle, yet its provisions were authorized for only seven years and are set to expire in 2022. There have been bipartisan efforts to permanently authorize it. Notably, the Federal Permitting Reform and Jobs Act would eliminate the sunset clause in FAST-41 to make its provisions permanent, along with a handful of process improvements and clarifications.

Permanently authorizing FAST-41 would ensure that gains in transparency and efficiency are extended and available to a wider set of stakeholders. The sunset clause creates uncertainty about the process for project sponsors and disincentivizes them to utilize this voluntary, coordinated process. A more stable process is necessary to set consistent expectations for project sponsors as they seek approval for the construction of assets built to last many decades.

As Congress and the Biden administration attempt to make generational investments in our nation’s infrastructure, the benefits of FAST-41 are even more critical—we cannot allow for the elimination of FAST-41 to slow down project implementation and create new challenges for infrastructure stakeholders.

BPC’s Smarter, Cleaner, Faster Task Force outlined several steps the federal government should take to improve FAST-41 in the future:

  • Encourage cooperation between federal-state agencies via memoranda of understanding (MOUs) for specific projects or categories.
  • Maximize use of the Permitting Dashboard, requiring all NEPA analyses to be included on the site, along with additional permitting timetables, plans, and project details.
  • Finalize and operationalize the Environmental Review Improvement Fund, which collects fees from project proponents for reasonable environmental review costs and uses the funds to cover the expenses of the FPISC or other agencies conducting reviews.

For more about BPC’s work on environmental review and permitting, visit:

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