On 14 May 2014, the Obama administration released a plan for improving the federal government’s review and permitting of large infrastructure projects (including surface and air transportation, renewable and conventional energy infrastructure, electricity transmission, water resource projects, ports and waterways, and broadband infrastructure). The Implementation Plan for the Presidential Memorandum on Modernizing Infrastructure Permitting (Infrastructure Plan) is part of the federal government’s ongoing implementation ofExecutive Order 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects. The plan was developed by an interagency steering committee composed of deputy secretaries or their equivalents from 12 federal agencies and chaired by the Office of Management and Budget, in coordination with the Council on Environmental Quality. Hogan Lovells associate Raya Treiser was the lead author for the plan prior to joining Hogan Lovells earlier this year, and she chaired an interagency working group to coordinate its development.
How will the plan improve the federal permitting of infrastructure projects?
The Infrastructure Plan identifies concrete steps that federal agencies will take to streamline permitting, improve coordination, and reduce uncertainty for project applicants, all while preserving important protections for the environment and communities. The key policy reforms announced in the plan include:
- a commitment to synchronize certain federal review processes, such as reviews by the U.S. Department of Transportation (DOT), the Army Corps of Engineers, and the U.S. Coast Guard
- the development of a government-wide policy for early and effective interagency coordination
- a commitment to expand programmatic approaches for permitting routine activities
- the creation of an interagency sub-group responsible for recommending improvements to agency implementation of the National Environmental Policy Act, the Endangered Species Act, the Clean Water Act, and the National Historic Preservation Act
- a commitment to facilitate advance mitigation planning on a landscape-scale to identify opportunities to avoid, minimize, and compensate for adverse environmental impacts
- a proposal in the President’s Fiscal Year (FY) 2015 Budget for increasing agency resources for permitting and reviews through additional appropriations and expanded cost-recovery authorities
- a commitment to ensure continued progress by creating an Interagency Infrastructure Permitting Improvement Center and tracking key metrics for project timelines and outcomes
The Infrastructure Plan also identifies a number of tools and guidance documents that will facilitate better project applications and a more efficient review process.
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What impact will these reforms have on proposed infrastructure projects?
The reforms outlined in the federal plan signal an unprecedented government-wide focus on improving the efficiency of infrastructure permitting. This is the first time in history that the federal government has outlined a proposal that combines agency commitment, tools, and institutional capacity to implement reforms, measure progress over time, and identify additional improvements.
Once implemented, these reforms have the potential to shave months or even years off the overall timelines for large infrastructure projects. For example, the synchronization of DOT, Army Corps, and Coast Guard reviews will significantly reduce the permitting timeline for projects requiring multiple reviews by these agencies. In addition, establishing additional programmatic approaches for regularly occurring activities, or expanding existing categorical exclusions for activities with minimal impacts, will expedite permitting timelines and facilitate more efficient use of limited agency resources.
Whether these reforms will translate into meaningful time savings for project applicants depends to a large extent on Congress’ decision whether to fund additional agency and interagency capacity as requested in the President’s FY 2015 budget. The transportation reauthorization bill proposed by the administration on 29 April, the GROW AMERICA Act, includes a number of the reforms outlined in the Infrastructure Plan, including the establishment of the Interagency Infrastructure Permitting Improvement Center, the expansion of the online Dashboard, and funding flexibility to support state and federal engagement in project reviews. The requested additional resources would ensure that federal agencies have the capacity to fully implement the reforms and keep up with the pace of project applications.
The Senate Environment and Public Works Committee's transportation reauthorization bill introduced yesterday does not include funding for these proposals. The bill does however introduce an important amendment to Transportation Infrastructure Finance and Innovation fund authority that would facilitate mitigation for transportation projects by authorizing acquisition of plant and wildlife habitat pursuant to an approved mitigation plan.
It is important to also note that the reforms outlined in the Infrastructure Plan are focused on the federal process and do not address all causes of delays for infrastructure projects. Tribal, state, and local governments; residential communities; nonprofit organizations; and other stakeholders all play important roles in the permitting and review processes for large infrastructure projects and can impact project timelines.
What are the next steps and opportunities for project proponents to engage in the process?
Once established, the Infrastructure Permitting Improvement Center will be responsible for implementing the Infrastructure Plan, tracking the progress of reforms, and identifying additional reforms. Over the coming weeks, the administration will set up an interim Interagency Infrastructure Permitting Improvement Team, staffed with detailees from the steering committee agencies, which will be responsible for the near-term implementation of the Infrastructure Plan.
Here are some of the key milestones to look for in the coming months, some of which present important opportunities for project proponents to inform additional policy and process improvements:
- selecting pilot projects for the Policy for Coordinated Project Review by Q3 2014
- identifying additional opportunities to synchronize federal reviews by Q3 2015
- developing draft high-performance attributes for infrastructure projects by Q1 2015
- identifying reforms to specific regulations, policies, or guidance to eliminate duplication or inefficiencies in the permitting process by Q3 2014
- proposing revisions to agency policies to facilitate landscape-level mitigation planning, consistent mitigation standards, and effective compensatory mitigation options by Q4 2014
- identifying an initial set of opportunities to establish programmatic approaches for regularly occurring actions or actions with minimal impacts by Q3 2014
- establishing metrics for tracking permitting and review timelines and a pilot methodology for collecting data on improved outcomes for communities and the environment by Q3 2014