Volume 25, Number 12 ● September 21, 2017
FAST-41 and Recent Executive and DOI Orders Seek to Streamline Environmental Reviews and Authorizations for Infrastructure Projects
Title 41 of the Fixing America’s Surface Transportation Act (FAST-41) created a new process intended to improve and expedite federal environmental review and authorization for qualified infrastructure projects subject to the National Environmental Policy Act (NEPA). FAST-41 was signed into law on December 4, 2015; however, it was recently reinforced in Executive Order 13807 published August 24, 2017, and in the Department of the Interior (DOI) Order 3355 published August 31, 2017. The Executive and DOI Orders incorporate the main components of FAST-41, but go further to establish target limits for review timeframes and agency approvals. Most significantly, Executive Order 13807 revokes Executive Order 13690 published January 30, 2015, which established the Federal Flood Risk Management Standard for federally-funded projects.
Infrastructure construction projects may be covered under FAST-41 if they: require authorization or environmental review by a federal agency, are subject to NEPA, exceed $200 million total investment, and do not qualify for an abbreviated environmental review and authorization process. In an effort to streamline the environmental review and approval process for covered projects, FAST-41 established the following:
- Federal Permitting Improvement Steering Council (FPISC) consisting of members from thirteen federal agencies, the Council on Environmental Quality (CEQ) and the Office of Management and Budget;
- Permitting Dashboard, which is an online database that tracks project review status to increase transparency and accountability;
- Project-specific timetables are required to set schedules for all environmental reviews and permitting actions.
- Agency accountability through annual reports to Congress that assess agency compliance with project performance schedules and implementation of FAST-41 best practices.
FAST-41 also provides enhanced legal protections by reducing the statute of limitations to challenge authorizations of covered projects from six to two years, and by limiting the review of NEPA challenges to those filed by parties that also submitted a related comment during the project’s environmental review.
Executive Order 13807
Executive Order 13807 of August 15, 2017 titled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Process” incorporates components of FAST-41 but goes further to specify certain performance goals and process enhancements as follows:
- Sets a goal of completing the Environmental Impact Statement (EIS) within two years from the Notice of Intent (NOI) to prepare an EIS;
- Establishes the “One Federal Decision” process such that each project has a lead federal agency that shepherds the project through the cross-agency review and approval process;
- This includes a preference for a single Record of Decision (ROD);
- Sets a goal of obtaining all federal authorizations required to construct the project within 90 days of the ROD issuance.
The most significant outcome of Executive Order 13807 appears to be the revocation of Executive Order 13690 “Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input.” The Federal Flood Risk Management Standard was intended to be a flexible framework to increase resilience against flooding by ensuring federal agencies design to a higher vertical elevation and corresponding horizontal floodplain than the current base flood elevation would otherwise dictate. Executive Order 13690 amended portions of Executive Order 11988 “Floodplain Management” and also established a new process for increased public input from state and local officials, as well as other stakeholders. Because Executive Order 13807 did not specify a replacement standard, the original version of Executive Order 11988, published May 24, 1977, comes back into effect. For additional information regarding Executive Orders 13690 and 11988, please see our April 16, 2015 Field Notes.
Department of the Interior Order 3355
DOI Order 3355 builds upon the August 24, 2017 Executive Order and goes a step further by setting EIS page and time limitations for all bureaus within the DOI as follows:
- EISs shall not be more than 150 pages, or 300 pages for unusually complex projects, excluding appendices;
- Target EIS completion date within one year from the NOI issuance.
- Reviews exceeding 15 months must be approved by the Assistant Secretary.
Council on Environmental Quality Initial Action List
On September 14, 2017, the CEQ issued an initial list of actions to improve the federal environmental review and approval process for infrastructure projects, in accordance with Executive Order 13807. The list includes:
- Developing a framework for implementing “One Federal Decision”;
- Coordinating with FPISC, Department of Transportation, and US Army Corps of Engineers to identify high-priority infrastructure projects;
- Review existing CEQ regulations regarding the implementation of NEPA and identify necessary updates;
- Issue guidance to simplify and expedite the NEPA review/approval process; and
- Form and lead an interagency working group to review existing regulations and identify ways to improve the efficiency of environmental reviews and approvals.
WSSI will continue to track how these and other federal agencies implement Executive Order 13807 and what effects that may have on NEPA-related reviews and approvals for infrastructure projects. Please contact Mike Rolband or Doug Chapin for additional information.