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How the Trump Administration Can Accelerate Permitting Now

By Andy Winkler

Tuesday, April 4, 2017

Infrastructure investment continues to be a high priority for the administration, and the congressional agenda may be shifting toward a much-needed infrastructure plan. Yet the Trump administration can act now without waiting on Congress to reduce project delays and attract private capital, in part with authority from the FAST Act and WIIN Act.

In President Trump’s joint address to Congress, he committed to a $1 trillion infrastructure investment plan financed through a mix of public and private capital. As the Bipartisan Policy Center has shown before, our nation’s lengthy permitting and environmental review process can add to projects’ time and cost, while deterring the entry of private capital. Acting now on permitting could help set the conditions necessary for a new infrastructure plan to more effectively modernize our nation’s infrastructure. Adopting policies that deliver modern infrastructure more quickly and at less cost is also a primary aim of the Coalition to Modernize American Infrastructure, a group of nearly 50 organizations united by a set of shared principles, including BPC’s Executive Council on Infrastructure.

Acting now on permitting could help set the conditions necessary for a new infrastructure plan to more effectively modernize our nation’s infrastructure.

A previous blog highlighted a few broad steps to accelerate permitting and environmental review:

  • Make simultaneous reviews the norm; 
  • Empower key decision-makers;
  • Expand the Permitting Dashboard; and
  • Increase data collection and transparency

The Trump administration can begin to put these into regular practice now. To further save time and money and encourage private sector investment in infrastructure, here are some technical recommendations the administration can also champion without Congress:

  • Institutionalize and expand the use of FAST Act Permitting Dashboard authorities. The FAST Act formalized and empowered the Federal Permitting Improvement Steering Council (FPISC) to expedite and encourage greater schedule adherence for “covered projects” in the permitting and environmental review process, but such authorities still must be carried out and institutionalized. Once designated, covered projects are added to the Permitting Dashboard, which transparently tracks permitting requirements, timelines, and federal agencies’ responsibilities. In addition, agencies are not only required to conduct simultaneous reviews, but are held accountable for falling off schedule. Covered projects therefore receive the benefit of enhanced predictability and accountability. They are also provided enhanced legal protections in the form of a two-year statute of limitations to challenge any authorizations and the requirement that environmental challenges must have been raised during the public comment period. Making greater use of the FPISC’s authorities and the Permitting Dashboard would be a significant step in the right direction.
  • Quickly appoint a new director of the FPISC. The implementation of the FAST Act’s Title 41 permitting provisions—codifying the FPISC and outlining an expedited review process, including schedules and online tracking, for complex or costly projects—is still in its infancy. A new director should be appointed quickly and empowered within the administration with the resources and staff to make these programs a success and build collaborative and productive relationships with the many agencies represented on the council.
  • Set up the Environmental Review Improvement Fund. The FAST Act’s Title 41 provided the authority to establish a fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews. Funds collected would be deposited into a Permitting Improvement Fund and made available to cover the expenses of the FPISC or transfer funds to agencies conducting environmental reviews to help make their processes more timely and efficient. These funds could also be used to improve practical or experiential understanding among senior level federal officials about NEPA.
  • Reopen DOT Order 5610.1D for additional comment before finalizing. In December 2016, DOT provided notice and a 21-day comment period for Order 5610.1D, which would update procedures for considering environmental impacts and implement a number of key FAST Act permitting provisions. A number of organizations, including AASHTO and ARTBA, expressed concern at the short comment period and warned that the document could create confusion and slow down project delivery as currently worded. While DOT should continue to expeditiously incorporate project delivery provisions of the FAST Act, an additional comment period would help ensure that this updated NEPA order will provide clarity and avoid undermining the intentions of the FAST Act’s streamlining provisions. Should DOT proceed with a final order without an additional comment period, that order should incorporate critical feedback from transportation stakeholders and address technical concerns that have the potential to exacerbate project delays.
  • Encourage further uptake to the Surface Transportation Project Delivery Program. 23 U.S.C. §327 allows FHWA to assign, and states to assume, NEPA responsibility for highway projects. California, Texas, Ohio, and Florida now participate in the program. Last November, FHWA also released for comment an MOU with Utah to participate. According to the California Department of Transportation, state NEPA assignment has resulted in significant time savings, reducing the median time for document processing, from notice of intent to final environmental impact statement approval, by a staggering 124 months. The Texas Department of Transportation has estimated an average time savings of 25 percent. With NEPA assignment and its attendant benefits increasingly well documented, DOT should solicit information on how to make the program attractive to other states. NEPA-assignment states are additionally allowed to participate in a pilot program authorized in the FAST Act’s §1309 (but yet not formalized through rulemaking) to substitute for NEPA state environmental laws and regulations that are at least as stringent as NEPA. The program may provide additional lessons for how states can assume NEPA responsibilities for other types of infrastructure projects, including wastewater and drinking water facilities.
  • Complete implementation of other FAST Act permitting provisions. While DOT has worked to implement new permitting procedures and authorities contained within the FAST Act, the table below outlines several provisions that merit further action. This list is not exhaustive; other FAST Act provisions – such as those contained within DOT Order 5610.1D – are captured in other recommendations.

FAST Act Permitting-Related Provisions

SectionDescriptionStatus
§1304 (b)Directs the DOT Secretary to allow for the use of programmatic approaches to conduct environmental reviews.TBA; congressionally directed to be complete by 12/4/16
§1316Requires DOT to submit recommendations to the House Committee on Transportation and Infrastructure and Senate Committee on Environment and Public Works on legislation to permit the assumption of additional authorities by states (such as project design, plans, specifications, estimates, contract awards).Notice posted 8/30/16; comments due 10/31/16; Submission within 18 months of enactment
§1421Required DOT to develop guidance that encourages the use of programmatic approaches to project delivery, expedited and prudent procurement techniques, and other best practices.Notice posted 8/30/16; comments due 10/31/16; website update pending
§11503Requires the DOT Secretary, among other things, to apply, to the greatest extent feasible, the project development procedures described in 23 U.S.C. 139 to railroad projects requiring the Secretary’s approval under NEPA; and to incorporate into FRA regulations and procedures for railroad projects aspects of the 23 U.S.C. 139 project development procedures which increase the efficiency of the review of railroad projects. Requires the DOT Secretary to publish a NPRM to propose new and existing categorical exclusions for railroad projects the Secretary must approve under NEPA.Notice posted 6/9/16; comments due 07/11/2016
§11504Directs DOT to provide ACHP with a proposed exemption of railroad rights-of-way consistent with the existing exemption for the Interstate Highway SystemForthcoming, submission required within one year of enactment

 

  • Review regulations, such as 23 CFR §636, governing the assumption of NEPA responsibilities by private entities. With increased interest in the potential of public-private partnerships (P3s), federal rulemakings pertaining to the ability of a private partner in a P3 contract to assume NEPA responsibilities, such as in the preparation of NEPA documents, should be reviewed and, where appropriate, amended. These regulations should encourage flexibility, optimal risk allocation, and innovation in public-private partnership contracts, while safeguarding the integrity of the NEPA process.
  • Improve PEL data collection and guidance, particularly for P3 projects. A significant issue with respect to P3s is timing—for example, does the private partner become involved before or after completion of environmental review. FHWA and FTA recently released an FAQ and rulemaking regarding Planning and Environmental Linkages (PEL), a collaborative and integrated approach to transportation decision-making that uses information, analysis, and other products developed during project planning to inform the environmental review process. PEL can improve communication, build relationships among stakeholders, accelerate project delivery, and result in better projects and environmental outcomes. Yet it is unclear the extent to which states and localities have begun to incorporate such techniques into regular practice. Nor is it always understood how best to engage the private sector when a public agency is pursuing a P3 or nontraditional procurement method. Additional guidance, case studies, and data collection may help to further disseminate and promote valuable PEL practices.
  • Extend lessons learned from SHRP2’s C19 effort to other areas of transportation and infrastructure. The second Strategic Highway Research Program (SHRP2) has done considerable work in developing solutions to expediting project delivery (C19). While much of this effort and the implementation assistance provided to states and localities was focused on highway infrastructure, best practices and solutions for expedited project delivery, linking planning and environmental review, and other research themes may have applications outside of FHWA programs. This work should be disseminated across agencies and adapted to other areas of infrastructure, leveraging the collaborative network created by the multi-agency FPISC.

KEYWORDS: 115TH CONGRESS, EXECUTIVE COUNCIL ON INFRASTRUCTURE, FAST ACT, PRESIDENT DONALD TRUMP