Division D — Pub. L. 114-94

SEC. 41001. Definitions.

In this title:

(1)

Agency.— The term “agency” has the meaning given the term in section 551 of title 5, United States Code.

(2)

Agency cerpo.— The term “agency CERPO” means the chief environmental review and permitting officer of an agency, as designated by the head of the agency under section 41002(b)(2)(A)(iii)(I).

(3)

Authorization.— The term “authorization” means any license, permit, approval, finding, determination, or other administrative decision issued by an agency that is required or authorized under Federal law in order to site, construct, reconstruct, or commence operations of a covered project administered by a Federal agency or, in the case of a State that chooses to participate in the environmental review and authorization process in accordance with section 41003(c)(3)(A), a State agency.

(4)

Cooperating agency.— The term “cooperating agency” means any agency with—

(A)

jurisdiction under Federal law; or

(B)

special expertise as described in section 1501.6 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this Act).

(5)

Council.— The term “Council” means the Federal Infrastructure Permitting Improvement Steering Council established under section 41002(a).

(6)

Covered project.—

(A)

In general.— The term “covered project” means any activity in the United States that requires authorization or environmental review by a Federal agency involving construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, manufacturing, or any other sector as determined by a majority vote of the Council that—

(i)

(I)

is subject to NEPA;

(II)

is likely to require a total investment of more than $200,000,000; and

(III)

does not qualify for abbreviated authorization or environmental review processes under any applicable law; or

(ii)

is subject to NEPA and the size and complexity of which, in the opinion of the Council, make the project likely to benefit from enhanced oversight and coordination, including a project likely to require—

(I)

authorization from or environmental review involving more than 2 Federal agencies; or

(II)

the preparation of an environmental impact statement under NEPA.

(B)

Exclusion.— The term “covered project” does not include—

(i)

any project subject to section 139 of title 23, United States Code; or

(ii)

any project subject to section 2045 of the Water Resources Development Act of 2007 (33 U.S.C. 2348).

(7)

Dashboard.— The term “Dashboard” means the Permitting Dashboard required under section 41003(b).

(8)

Environmental assessment.— The term “environmental assessment” means a concise public document for which a Federal agency is responsible under section 1508.9 of title 40, Code of Federal Regulations (or successor regulations).

(9)

Environmental document.—

(A)

In general.— The term “environmental document” means an environmental assessment, finding of no significant impact, notice of intent, environmental impact statement, or record of decision.

(B)

Inclusions.— The term “environmental document” includes—

(i)

any document that is a supplement to a document described in subparagraph (A); and

(ii)

a document prepared pursuant to a court order.

(10)

Environmental impact statement.— The term “environmental impact statement” means the detailed written statement required under section 102(2)(C) of NEPA.

(11)

Environmental review.— The term “environmental review” means the agency procedures and processes for applying a categorical exclusion or for preparing an environmental assessment, an environmental impact statement, or other document required under NEPA.

(12)

Executive director.— The term “Executive Director” means the Executive Director appointed by the President under section 41002(b)(1)(A).

(13)

Facilitating agency.— The term “facilitating agency” means the agency that receives the initial notification from the project sponsor required under section 41003(a).

(14)

Inventory.— The term “inventory” means the inventory of covered projects established by the Executive Director under section 41002(c)(1)(A).

(15)

Lead agency.— The term “lead agency” means the agency with principal responsibility for an environmental review of a covered project under NEPA and parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations).

(16)

NEPA.— The term “NEPA” means the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(17)

Participating agency.— The term “participating agency” means an agency participating in an environmental review or authorization for a covered project in accordance with section 41003.

(18)

Project sponsor.— The term “project sponsor” means an entity, including any private, public, or public-private entity, seeking an authorization for a covered project.

SEC. 41002. Federal Permitting Improvement Council.

(a)

Establishment.— There is established the Federal Permitting Improvement Steering Council.

(b)

Composition.—

(1)

Chair.— The Executive Director shall—

(A)

be appointed by the President; and

(B)

serve as Chair of the Council.

(2)

Council members.—

(A)

In general.—

(i)

Designation by head of agency.— Each individual listed in subparagraph (B) shall designate a member of the agency in which the individual serves to serve on the Council.

(ii)

Qualifications.— A councilmem-ber described in clause (i) shall hold a position in the agency of deputy secretary (or the equivalent) or higher.

(iii)

Support.—

(I)

In general.— Consistent with guidance provided by the Director of the Office of Management and Budget, each individual listed in subparagraph (B) shall designate 1 or more appropriate members of the agency in which the individual serves to serve as an agency CERPO.

(II)

Reporting.— In carrying out the duties of the agency CERPO under this title, an agency CERPO shall report directly to a deputy secretary (or the equivalent) or higher.

(B)

Heads of agencies.— The individuals that shall each designate a councilmember under this subparagraph are as follows:

(i)

The Secretary of Agriculture.

(ii)

The Secretary of the Army.

(iii)

The Secretary of Commerce.

(iv)

The Secretary of the Interior.

(v)

The Secretary of Energy.

(vi)

The Secretary of Transportation.

(vii)

The Secretary of Defense.

(viii)

The Administrator of the Environmental Protection Agency.

(ix)

The Chairman of the Federal Energy Regulatory Commission.

(x)

The Chairman of the Nuclear Regulatory Commission.

(xi)

The Secretary of Homeland Security.

(xii)

The Secretary of Housing and Urban Development.

(xiii)

The Chairman of the Advisory Council on Historic Preservation.

(xiv)

Any other head of a Federal agency that the Executive Director may invite to participate as a member of the Council.

(3)

Additional members.— In addition to the members listed in paragraphs (1) and (2), the Chairman of the Council on Environmental Quality and the Director of the Office of Management and Budget shall also be members of the Council.

(c)

Duties.—

(1)

Executive director.—

(A)

Inventory development.— The Executive Director, in consultation with the Council, shall—

(i)

not later than 180 days after the date of enactment of this Act, establish an inventory of covered projects that are pending the environmental review or authorization of the head of any Federal agency;

(ii)

(I)

categorize the projects in the inventory as appropriate, based on sector and project type; and

(II)

for each category, identify the types of environmental reviews and authorizations most commonly involved; and

(iii)

add a covered project to the inventory after receiving a notice described in section 41003(a)(1).

(B)

Facilitating agency designation.— The Executive Director, in consultation with the Council, shall—

(i)

designate a facilitating agency for each category of covered projects described in subparagraph (A)(ii); and

(ii)

publish the list of designated facilitating agencies for each category of projects in the inventory on the Dashboard in an easily accessible format.

(C)

Performance schedules.—

(i)

In general.— Not later than 1 year after the date of enactment of this Act, the Executive Director, in consultation with the Council, shall develop recommended performance schedules, including intermediate and final completion dates, for environmental reviews and authorizations most commonly required for each category of covered projects described in subparagraph (A)(ii).

(ii)

Requirements.—

(I)

In general.— The performance schedules shall reflect employment of the use of the most efficient applicable processes, including the alignment of Federal reviews of projects and reduction of permitting and project delivery time.

(II)

Limit.—

(aa)

In general.— The final completion dates in any performance schedule for the completion of an environmental review or authorization under clause (i) shall not exceed the average time to complete an environmental review or authorization for a project within that category.

(bb)

Calculation of average time.— The average time referred to in item (aa) shall be calculated on the basis of data from the preceding 2 calendar years and shall run from the period beginning on the date on which the Executive Director must make a specific entry for the project on the Dashboard under section 41003(b)(2) (except that, for projects initiated before that duty takes effect, the period beginning on the date of filing of a completed application), and ending on the date of the issuance of a record of decision or other final agency action on the review or authorization.

(cc)

Completion date.— Each performance schedule shall specify that any decision by an agency on an environmental review or authorization must be issued not later than 180 days after the date on which all information needed to complete the review or authorization (including any hearing that an agency holds on the matter) is in the possession of the agency.

(iii)

Review and revision.— Not later than 2 years after the date on which the performance schedules are established under this subparagraph, and not less frequently than once every 2 years thereafter, the Executive Director, in consultation with the Council, shall review and revise the performance schedules.

(D)

Guidance.— The Executive Director, in consultation with the Council, may recommend to the Director of the Office of Management and Budget or to the Council on Environmental Quality, as appropriate, that guidance be issued as necessary for agencies—

(i)

to carry out responsibilities under this title; and

(ii)

to effectuate the adoption by agencies of the best practices and recommendations of the Council described in paragraph (2).

(2)

Council.—

(A)

Recommendations.—

(i)

In general.— The Council shall make recommendations to the Executive Director with respect to the designations under paragraph (1)(B) and the performance schedules under paragraph (1)(C).

(ii)

Update.— The Council may update the recommendations described in clause (i).

(B)

Best practices.— Not later than 1 year after the date of enactment of this Act, and not less frequently than annually thereafter, the Council shall issue recommendations on the best practices for—

(i)

enhancing early stakeholder engagement, including fully considering and, as appropriate, incorporating recommendations provided in public comments on any proposed covered project;

(ii)

ensuring timely decisions regarding environmental reviews and authorizations, including through the development of performance metrics;

(iii)

improving coordination between Federal and non-Federal governmental entities, including through the development of common data standards and terminology across agencies;

(iv)

increasing transparency;

(v)

reducing information collection requirements and other administrative burdens on agencies, project sponsors, and other interested parties;

(vi)

developing and making available to applicants appropriate geographic information systems and other tools;

(vii)

creating and distributing training materials useful to Federal, State, tribal, and local permitting officials; and

(viii)

addressing other aspects of infrastructure permitting, as determined by the Council.

(C)

Meetings.— The Council shall meet not less frequently than annually with groups or individuals representing State, tribal, and local governments that are engaged in the infrastructure permitting process.

(3)

Agency cerpos.— An agency CERPO shall—

(A)

advise the respective agency councilmember on matters related to environmental reviews and authorizations;

(B)

provide technical support, when requested to facilitate efficient and timely processes for environmental reviews and authorizations for covered projects under the jurisdictional responsibility of the agency, including supporting timely identification and resolution of potential disputes within the agency or between the agency and other Federal agencies;

(C)

analyze agency environmental review and authorization processes, policies, and authorities and make recommendations to the respective agency councilmember for ways to standardize, simplify, and improve the efficiency of the processes, policies, and authorities, including by implementing guidance issued under paragraph (1)(D) and other best practices, including the use of information technology and geographic information system tools within the agency and across agencies, to the extent consistent with existing law; and

(D)

review and develop training programs for agency staff that support and conduct environmental reviews or authorizations.

(d)

Administrative Support.— The Director of the Office of Management and Budget shall designate a Federal agency, other than an agency that carries out or provides support only for projects that are not covered projects, to provide administrative support for the Executive Director, and the designated agency shall, as reasonably necessary, provide support and staff to enable the Executive Director to fulfill the duties of the Executive Director under this title.

SEC. 41003. Permitting Process Improvement.

(a)

Project Initiation and Designation of Participating Agencies.—

(1)

Notice.—

(A)

In general.— A project sponsor of a covered project shall submit to the Executive Director and the facilitating agency notice of the initiation of a proposed covered project.

(B)

Default designation.— If, at the time of submission of the notice under subparagraph (A), the Executive Director has not designated a facilitating agency under section 41002(c)(1)(B) for the categories of projects noticed, the agency that receives the notice under subparagraph (A) shall be designated as the facilitating agency.

(C)

Contents.— Each notice described in subparagraph (A) shall include—

(i)

a statement of the purposes and objectives of the proposed project;

(ii)

a concise description, including the general location of the proposed project and a summary of geospatial information, if available, illustrating the project area and the locations, if any, of environmental, cultural, and historic resources;

(iii)

a statement regarding the technical and financial ability of the project sponsor to construct the proposed project;

(iv)

a statement of any Federal financing, environmental reviews, and authorizations anticipated to be required to complete the proposed project; and

(v)

an assessment that the proposed project meets the definition of a covered project under section 41001 and a statement of reasons supporting the assessment.

(2)

Invitation.—

(A)

In general.— Not later than 45 days after the date on which the Executive Director must make a specific entry for the project on the Dashboard under subsection (b)(2)(A), the facilitating agency or lead agency, as applicable, shall—

(i)

identify all Federal and non-Federal agencies and governmental entities likely to have financing, environmental review, authorization, or other responsibilities with respect to the proposed project; and

(ii)

invite all Federal agencies identified under clause (i) to become a participating agency or a cooperating agency, as appropriate, in the environmental review and authorization management process described in section 41005.

(B)

Deadlines.— Each invitation made under subparagraph (A) shall include a deadline for a response to be submitted to the facilitating or lead agency, as applicable.

(3)

Participating and cooperating agencies.—

(A)

In general.— An agency invited under paragraph (2) shall be designated as a participating or cooperating agency for a covered project, unless the agency informs the facilitating or lead agency, as applicable, in writing before the deadline under paragraph (2)(B) that the agency—

(i)

has no jurisdiction or authority with respect to the proposed project; or

(ii)

does not intend to exercise authority related to, or submit comments on, the proposed project.

(B)

Changed circumstances.— On request and a showing of changed circumstances, the Executive Director may designate an agency that has opted out under subparagraph (A)(ii) to be a participating or cooperating agency, as appropriate.

(4)

Effect of designation.— The designation described in paragraph (3) shall not—

(A)

give the participating agency authority or jurisdiction over the covered project; or

(B)

expand any jurisdiction or authority a cooperating agency may have over the proposed project.

(5)

Lead agency designation.—

(A)

In general.— On establishment of the lead agency, the lead agency shall assume the responsibilities of the facilitating agency under this title.

(B)

Redesignation of facilitating agency.— If the lead agency assumes the responsibilities of the facilitating agency under subparagraph (A), the facilitating agency may be designated as a cooperative or participating agency.

(6)

Change of facilitating or lead agency.—

(A)

In general.— On the request of a participating agency or project sponsor, the Executive Director may designate a different agency as the facilitating or lead agency, as applicable, for a covered project, if the facilitating or lead agency or the Executive Director receives new information regarding the scope or nature of a covered project that indicates that the project should be placed in a different category under section 41002(c)(1)(B).

(B)

Resolution of dispute.— The Chairman of the Council on Environmental Quality shall resolve any dispute over designation of a facilitating or lead agency for a particular covered project.

(b)

Permitting Dashboard.—

(1)

Requirement to maintain.—

(A)

In general.— The Executive Director, in coordination with the Administrator of General Services, shall maintain an online database to be known as the “Permitting Dashboard” to track the status of Federal environmental reviews and authorizations for any covered project in the inventory described in section 41002(c)(1)(A).

(B)

Specific and searchable entry.— The Dashboard shall include a specific and searchable entry for each covered project.

(2)

Additions.—

(A)

In general.—

(i)

Existing projects.— Not later than 14 days after the date on which the Executive Director adds a project to the inventory under section 41002(c)(1)(A), the Executive Director shall create a specific entry on the Dashboard for the covered project.

(ii)

New projects.— Not later than 14 days after the date on which the Executive Director receives a notice under subsection (a)(1), the Executive Director shall create a specific entry on the Dashboard for the covered project, unless the Executive Director, facilitating agency, or lead agency, as applicable, determines that the project is not a covered project.

(B)

Explanation.— If the facilitating agency or lead agency, as applicable, determines that the project is not a covered project, the project sponsor may submit a further explanation as to why the project is a covered project not later than 14 days after the date of the determination under subparagraph (A).

(C)

Final determination.— Not later than 14 days after receiving an explanation described in subparagraph (B), the Executive Director shall—

(i)

make a final and conclusive determination as to whether the project is a covered project; and

(ii)

if the Executive Director determines that the project is a covered project, create a specific entry on the Dashboard for the covered project.

(3)

Postings by agencies.—

(A)

In general.— For each covered project added to the Dashboard under paragraph (2), the facilitating or lead agency, as applicable, and each cooperating and participating agency shall post to the Dashboard—

(i)

a hyperlink that directs to a website that contains, to the extent consistent with applicable law—

(I)

the notification submitted under subsection (a)(1);

(II)

(aa)

where practicable, the application and supporting documents, if applicable, that have been submitted by a project sponsor for any required environmental review or authorization; or

(bb)

a notice explaining how the public may obtain access to such documents;

(III)

a description of any Federal agency action taken or decision made that materially affects the status of a covered project;

(IV)

any significant document that supports the action or decision described in subclause (III); and

(V)

a description of the status of any litigation to which the agency is a party that is directly related to the project, including, if practicable, any judicial document made available on an electronic docket maintained by a Federal, State, or local court; and

(ii)

any document described in clause (i) that is not available by hyperlink on another website.

(B)

Deadline.— The information described in subparagraph (A) shall be posted to the website made available by hyperlink on the Dashboard not later than 5 business days after the date on which the Federal agency receives the information.

(4)

Postings by the executive director.— The Executive Director shall publish to the Dashboard—

(A)

the permitting timetable established under subparagraph (A) or (C) of subsection (c)(2);

(B)

the status of the compliance of each agency with the permitting timetable;

(C)

any modifications of the permitting timetable;

(D)

an explanation of each modification described in subparagraph (C); and

(E)

any memorandum of understanding established under subsection (c)(3)(B).

(c)

Coordination and Timetables.—

(1)

Coordinated project plan.—

(A)

In general.— Not later than 60 days after the date on which the Executive Director must make a specific entry for the project on the Dashboard under subsection (b)(2)(A), the facilitating or lead agency, as applicable, in consultation with each coordinating and participating agency, shall establish a concise plan for coordinating public and agency participation in, and completion of, any required Federal environmental review and authorization for the project.

(B)

Required information.— The Coordinated Project Plan shall include the following information and be updated by the facilitating or lead agency, as applicable, at least once per quarter:

(i)

A list of, and roles and responsibilities for, all entities with environmental review or authorization responsibility for the project.

(ii)

A permitting timetable, as described in paragraph (2), setting forth a comprehensive schedule of dates by which all environmental reviews and authorizations, and to the maximum extent practicable, State permits, reviews and approvals must be made.

(iii)

A discussion of potential avoidance, minimization, and mitigation strategies, if required by applicable law and known.

(iv)

Plans and a schedule for public and tribal outreach and coordination, to the extent required by applicable law.

(C)

Memorandum of understanding.— The coordinated project plan described in subparagraph (A) may be incorporated into a memorandum of understanding.

(2)

Permitting timetable.—

(A)

Establishment.— As part of the coordination project plan under paragraph (1), the facilitating or lead agency, as applicable, in consultation with each cooperating and participating agency, the project sponsor, and any State in which the project is located, and, subject to subparagraph (C), with the concurrence of each cooperating agency, shall establish a permitting timetable that includes intermediate and final completion dates for action by each participating agency on any Federal environmental review or authorization required for the project.

(B)

Factors for consideration.— In establishing the permitting timetable under subparagraph (A), the facilitating or lead agency shall follow the performance schedules established under section 41002(c)(1)(C), but may vary the timetable based on relevant factors, including—

(i)

the size and complexity of the covered project;

(ii)

the resources available to each participating agency;

(iii)

the regional or national economic significance of the project;

(iv)

the sensitivity of the natural or historic resources that may be affected by the project;

(v)

the financing plan for the project; and

(vi)

the extent to which similar projects in geographic proximity to the project were recently subject to environmental review or similar procedures under State law.

(C)

Dispute resolution.—

(i)

In general.— The Executive Director, in consultation with appropriate agency CERPOs and the project sponsor, shall, as necessary, mediate any disputes regarding the permitting timetable referred to under subparagraph (A).

(ii)

Disputes.— If a dispute remains unresolved 30 days after the date on which the dispute was submitted to the Executive Director, the Director of the Office of Management and Budget, in consultation with the Chairman of the Council on Environmental Quality, shall facilitate a resolution of the dispute and direct the agencies party to the dispute to resolve the dispute by the end of the 60-day period beginning on the date of submission of the dispute to the Executive Director.

(iii)

Final resolution.— Any action taken by the Director of the Office of Management and Budget in the resolution of a dispute under clause (ii) shall—

(I)

be final and conclusive; and

(II)

not be subject to judicial review.

(D)

Modification after approval.—

(i)

In general.— The facilitating or lead agency, as applicable, may modify a permitting timetable established under subparagraph (A) only if—

(I)

the facilitating or lead agency, as applicable, and the affected cooperating agencies, after consultation with the participating agencies and the project sponsor, agree to a different completion date;

(II)

the facilitating agency or lead agency, as applicable, or the affected cooperating agency provides a written justification for the modification; and

(III)

in the case of a modification that would necessitate an extension of a final completion date under a permitting timetable established under subparagraph (A) to a date more than 30 days after the final completion date originally established under subparagraph (A), the facilitating or lead agency submits a request to modify the permitting timetable to the Executive Director, who shall consult with the project sponsor and make a determination on the record, based on consideration of the relevant factors described under subparagraph (B), whether to grant the facilitating or lead agency, as applicable, authority to make such modification.

(ii)

Completion date.— A completion date in the permitting timetable may not be modified within 30 days of the completion date.

(iii)

Limitation on length of modifications.—

(I)

In general.— Except as provided in subclause (II), the total length of all modifications to a permitting timetable authorized or made under this subparagraph, other than for reasons outside the control of Federal, State, local, or tribal governments, may not extend the permitting timetable for a period of time greater than half of the amount of time from the establishment of the permitting timetable under subparagraph (A) to the last final completion date originally established under subparagraph (A).

(II)

Additional extensions.— The Director of the Office of Management and Budget, after consultation with the project sponsor, may permit the Executive Director to authorize additional extensions of a permitting timetable beyond the limit prescribed by subclause (I). In such a case, the Director of the Office of Management and Budget shall transmit, not later than 5 days after making a determination to permit an authorization of extension under this subclause, a report to Congress explaining why such modification is required. Such report shall explain to Congress with specificity why the original permitting timetable and the modifications authorized by the Executive Director failed to be adequate. The lead or facilitating agency, as applicable, shall transmit to Congress, the Director of the Office of Management and Budget, and the Executive Director a supplemental report on progress toward the final completion date each year thereafter, until the permit review is completed or the project sponsor withdraws its notice or application or other request to which this title applies under section 41010.

(iv)

Limitation on judicial review.— The following shall not be subject to judicial review:

(I)

A determination by the Executive Director under clause (i)(III).

(II)

A determination under clause (iii)(II) by the Director of the Office of Management and Budget to permit the Executive Director to authorize extensions of a permitting timetable.

(E)

Consistency with other time periods.— A permitting timetable established under subparagraph (A) shall be consistent with any other relevant time periods established under Federal law and shall not prevent any cooperating or participating agency from discharging any obligation under Federal law in connection with the project.

(F)

Conforming to permitting timetables.—

(i)

In general.— Each Federal agency shall conform to the completion dates set forth in the permitting timetable established under subparagraph (A), or with any completion date modified under subparagraph (D).

(ii)

Failure to conform.— If a Federal agency fails to conform with a completion date for agency action on a covered project or is at significant risk of failing to conform with such a completion date, the agency shall—

(I)

promptly submit to the Executive Director for publication on the Dashboard an explanation of the specific reasons for failing or significantly risking failing to conform to the completion date and a proposal for an alternative completion date;

(II)

in consultation with the facilitating or lead agency, as applicable, establish an alternative completion date; and

(III)

each month thereafter until the agency has taken final action on the delayed authorization or review, submit to the Executive Director for posting on the Dashboard a status report describing any agency activity related to the project.

(G)

Abandonment of covered project.—

(i)

In general.— If the facilitating or lead agency, as applicable, has a reasonable basis to doubt the continuing technical or financial ability of the project sponsor to construct the covered project, the facilitating or lead agency may request the project sponsor provide an updated statement regarding the ability of the project sponsor to complete the project.

(ii)

Failure to respond.— If the project sponsor fails to respond to a request described in clause (i) by the date that is 30 days after receiving the request, the lead or facilitating agency, as applicable, shall notify the Executive Director, who shall publish an appropriate notice on the Dashboard.

(iii)

Publication to dashboard.— On publication of a notice under clause (ii), the completion dates in the permitting timetable shall be tolled and agencies shall be relieved of the obligation to comply with subparagraph (F) until such time as the project sponsor submits to the facilitating or lead agency, as applicable, an updated statement regarding the technical and financial ability of the project sponsor to construct the project.

(3)

Cooperating state, local, or tribal governments.—

(A)

State authority.— If the Federal environmental review is being implemented within the boundaries of a State, the State, consistent with State law, may choose to participate in the environmental review and authorization process under this subsection and to make subject to the process all State agencies that—

(i)

have jurisdiction over the covered project;

(ii)

are required to conduct or issue a review, analysis, opinion, or statement for the covered project; or

(iii)

are required to make a determination on issuing a permit, license, or other approval or decision for the covered project.

(B)

Coordination.— To the maximum extent practicable under applicable law, the facilitating or lead agency, as applicable, shall coordinate the Federal environmental review and authorization processes under this subsection with any State, local, or tribal agency responsible for conducting any separate review or authorization of the covered project to ensure timely and efficient completion of environmental reviews and authorizations.

(C)

Memorandum of understanding.—

(i)

In general.— Any coordination plan between the facilitating or lead agency, as applicable, and any State, local, or tribal agency shall, to the maximum extent practicable, be included in a memorandum of understanding.

(ii)

Submission to executive director.— The facilitating or lead agency, as applicable, shall submit to the Executive Director each memorandum of understanding described in clause (i).

(D)

Applicability.— The requirements under this title shall only apply to a State or an authorization issued by a State if the State has chosen to participate in the environmental review and authorization process pursuant to this paragraph.

(d)

Early Consultation.— The facilitating or lead agency, as applicable, shall provide an expeditious process for project sponsors to confer with each cooperating and participating agency involved and, not later than 60 days after the date on which the project sponsor submits a request under this subsection, to have each such agency provide to the project sponsor information concerning—

(1)

the availability of information and tools, including pre-application toolkits, to facilitate early planning efforts;

(2)

key issues of concern to each agency and to the public; and

(3)

issues that must be addressed before an environmental review or authorization can be completed.

(e)

Cooperating Agency.—

(1)

In general.— A lead agency may designate a participating agency as a cooperating agency in accordance with part 1501 of title 40, Code of Federal Regulations (or successor regulations).

(2)

Effect on other designation.— The designation described in paragraph (1) shall not affect any designation under subsection (a)(3).

(3)

Limitation on designation.— Any agency not designated as a participating agency under subsection (a)(3) shall not be designated as a cooperating agency under paragraph (1).

(f)

Reporting Status of Other Projects on Dashboard.—

(1)

In general.— On request of the Executive Director, the Secretary and the Secretary of the Army shall use best efforts to provide information for inclusion on the Dashboard on projects subject to section 139 of title 23, United States Code, and section 2045 of the Water Resources Development Act of 2007 (33 U.S.C. 2348) likely to require—

(A)

a total investment of more than $200,000,000; and

(B)

an environmental impact statement under NEPA.

(2)

Effect of inclusion on dashboard.— Inclusion on the Dashboard of information regarding projects subject to section 139 of title 23, United States Code, or section 2045 of the Water Resources Development Act of 2007 (33 U.S.C. 2348) shall not subject those projects to any requirements of this title.

SEC. 41004. Interstate Compacts.

(a)

In General.— The consent of Congress is given for 3 or more contiguous States to enter into an interstate compact establishing regional infrastructure development agencies to facilitate authorization and review of covered projects, under State law or in the exercise of delegated permitting authority described under section 41006, that will advance infrastructure development, production, and generation within the States that are parties to the compact.

(b)

Regional Infrastructure.— For the purpose of this title, a regional infrastructure development agency referred to in subsection (a) shall have the same authorities and responsibilities of a State agency.

SEC. 41005. Coordination of Required Reviews.

(a)

Concurrent Reviews.— To integrate environmental reviews and authorizations, each agency shall, to the maximum extent practicable—

(1)

carry out the obligations of the agency with respect to a covered project under any other applicable law concurrently, and in conjunction with, other environmental reviews and authorizations being conducted by other cooperating or participating agencies, including environmental reviews and authorizations required under NEPA, unless the agency determines that doing so would impair the ability of the agency to carry out the statutory obligations of the agency; and

(2)

formulate and implement administrative, policy, and procedural mechanisms to enable the agency to ensure completion of the environmental review process in a timely, coordinated, and environmentally responsible manner.

(b)

Adoption, Incorporation by Reference, and Use of Documents.—

(1)

State environmental documents; supplemental documents.—

(A)

Use of existing documents.—

(i)

In general.— On the request of a project sponsor, a lead agency shall consider and, as appropriate, adopt or incorporate by reference, the analysis and documentation that has been prepared for a covered project under State laws and procedures as the documentation, or part of the documentation, required to complete an environmental review for the covered project, if the analysis and documentation were, as determined by the lead agency in consultation with the Council on Environmental Quality, prepared under circumstances that allowed for opportunities for public participation and consideration of alternatives, environmental consequences, and other required analyses that are substantially equivalent to what would have been available had the documents and analysis been prepared by a Federal agency pursuant to NEPA.

(ii)

Guidance by ceq.— The Council on Environmental Quality may issue guidance to carry out this subsection.

(B)

NEPA obligations.— An environmental document adopted under subparagraph (A) or a document that includes documentation incorporated under subparagraph (A) may serve as the documentation required for an environmental review or a supplemental environmental review required to be prepared by a lead agency under NEPA.

(C)

Supplementation of state documents.— If the lead agency adopts or incorporates analysis and documentation described in subparagraph (A), the lead agency shall prepare and publish a supplemental document if the lead agency determines that during the period after preparation of the analysis and documentation and before the adoption or incorporation—

(i)

a significant change has been made to the covered project that is relevant for purposes of environmental review of the project; or

(ii)

there has been a significant circumstance or new information has emerged that is relevant to the environmental review for the covered project.

(D)

Comments.— If a lead agency prepares and publishes a supplemental document under subparagraph (C), the lead agency shall solicit comments from other agencies and the public on the supplemental document for a period of not more than 45 days, beginning on the date on which the supplemental document is published, unless—

(i)

the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or

(ii)

the lead agency extends the deadline for good cause.

(E)

Notice of outcome of environmental review.— A lead agency shall issue a record of decision or finding of no significant impact, as appropriate, based on the document adopted under subparagraph (A) and any supplemental document prepared under subparagraph (C).

(c)

Alternatives Analysis.—

(1)

Participation.—

(A)

In general.— As early as practicable during the environmental review, but not later than the commencement of scoping for a project requiring the preparation of an environmental impact statement, the lead agency shall engage the cooperating agencies and the public to determine the range of reasonable alternatives to be considered for a covered project.

(B)

Determination.— The determination under subparagraph (A) shall be completed not later than the completion of scoping.

(2)

Range of alternatives.—

(A)

In general.— Following participation under paragraph (1) and subject to subparagraph (B), the lead agency shall determine the range of reasonable alternatives for consideration in any document that the lead agency is responsible for preparing for the covered project.

(B)

Alternatives required by law.— In determining the range of alternatives under subparagraph (A), the lead agency shall include all alternatives required to be considered by law.

(3)

Methodologies.—

(A)

In general.— The lead agency shall determine, in collaboration with each cooperating agency at appropriate times during the environmental review, the methodologies to be used and the level of detail required in the analysis of each alternative for a covered project.

(B)

Environmental review.— A cooperating agency shall use the methodologies referred to in subparagraph (A) when conducting any required environmental review, to the extent consistent with existing law.

(4)

Preferred alternative.— With the concurrence of the cooperating agencies with jurisdiction under Federal law and at the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a higher level of detail than other alternatives to facilitate the development of mitigation measures or concurrent compliance with other applicable laws if the lead agency determines that the development of the higher level of detail will not prevent—

(A)

the lead agency from making an impartial decision as to whether to accept another alternative that is being considered in the environmental review; and

(B)

the public from commenting on the preferred and other alternatives.

(d)

Environmental Review Comments.—

(1)

Comments on draft environmental impact statement.— For comments by an agency or the public on a draft environmental impact statement, the lead agency shall establish a comment period of not less than 45 days and not more than 60 days after the date on which a notice announcing availability of the environmental impact statement is published in the Federal Register, unless—

(A)

the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or

(B)

the lead agency, in consultation with each cooperating agency, extends the deadline for good cause.

(2)

Other review and comment periods.— For all other review or comment periods in the environmental review process described in parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations), the lead agency shall establish a comment period of not more than 45 days after the date on which the materials on which comment is requested are made available, unless—

(A)

the lead agency, the project sponsor, and any cooperating agency agree to a longer deadline; or

(B)

the lead agency extends the deadline for good cause.

(e)

Issue Identification and Resolution.—

(1)

Cooperation.— The lead agency and each cooperating and participating agency shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion of an environmental review or an authorization required for the project under applicable law or result in the denial of any approval under applicable law.

(2)

Lead agency responsibilities.—

(A)

In general.— The lead agency shall make information available to each cooperating and participating agency and project sponsor as early as practicable in the environmental review regarding the environmental, historic, and socioeconomic resources located within the project area and the general locations of the alternatives under consideration.

(B)

Sources of information.— The information described in subparagraph (A) may be based on existing data sources, including geographic information systems mapping.

(3)

Cooperating and participating agency responsibilities.— Each cooperating and participating agency shall—

(A)

identify, as early as practicable, any issues of concern regarding any potential environmental impacts of the covered project, including any issues that could substantially delay or prevent an agency from completing any environmental review or authorization required for the project; and

(B)

communicate any issues described in subparagraph (A) to the project sponsor.

(f)

Categories of Projects.— The authorities granted under this section may be exercised for an individual covered project or a category of covered projects.

SEC. 41006. Delegated State Permitting Programs.

(a)

In General.— If a Federal statute permits a Federal agency to delegate to or otherwise authorize a State to issue or otherwise administer a permit program in lieu of the Federal agency, the Federal agency with authority to carry out the statute shall—

(1)

on publication by the Council of best practices under section 41002(c)(2)(B), initiate a national process, with public participation, to determine whether and the extent to which any of the best practices are generally applicable on a delegation- or authorization-wide basis to permitting under the statute; and

(2)

not later than 2 years after the date of enactment of this Act, make model recommendations for State modifications of the applicable permit program to reflect the best practices described in section 41002(c)(2)(B), as appropriate.

(b)

Best Practices.— Lead and cooperating agencies may share with State, tribal, and local authorities best practices involved in review of covered projects and invite input from State, tribal, and local authorities regarding best practices.

SEC. 41007. Litigation, Judicial Review, and Savings Provision.

(a)

Limitations on Claims.—

(1)

In general.— Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of any authorization issued by a Federal agency for a covered project shall be barred unless—

(A)

the action is filed not later than 2 years after the date of publication in the Federal Register of the final record of decision or approval or denial of a permit, unless a shorter time is specified in the Federal law under which judicial review is allowed; and

(B)

in the case of an action pertaining to an environmental review conducted under NEPA—

(i)

the action is filed by a party that submitted a comment during the environmental review; and

(ii)

any commenter filed a sufficiently detailed comment so as to put the lead agency on notice of the issue on which the party seeks judicial review, or the lead agency did not provide a reasonable opportunity for such a comment on that issue.

(2)

New information.—

(A)

In general.— The head of a lead agency or participating agency shall consider new information received after the close of a comment period if the information satisfies the requirements under regulations implementing NEPA.

(B)

Separate action.— If Federal law requires the preparation of a supplemental environmental impact statement or other supplemental environmental document, the preparation of such document shall be considered a separate final agency action and the deadline for filing a claim for judicial review of the agency action shall be 2 years after the date on which a notice announcing the final agency action is published in the Federal Register, unless a shorter time is specified in the Federal law under which judicial review is allowed.

(3)

Rule of construction.— Nothing in this subsection creates a right to judicial review or places any limit on filing a claim that a person has violated the terms of an authorization.

(b)

Preliminary Injunctive Relief.— In addition to considering any other applicable equitable factors, in any action seeking a temporary restraining order or preliminary injunction against an agency or a project sponsor in connection with review or authorization of a covered project, the court shall—

(1)

consider the potential effects on public health, safety, and the environment, and the potential for significant negative effects on jobs resulting from an order or injunction; and

(2)

not presume that the harms described in paragraph (1) are reparable.

(c)

Judicial Review.— Except as provided in subsection (a), nothing in this title affects the reviewability of any final Federal agency action in a court of competent jurisdiction.

(d)

Savings Clause.— Nothing in this title—

(1)

supersedes, amends, or modifies any Federal statute or affects the responsibility of any Federal officer to comply with or enforce any statute; or

(2)

creates a presumption that a covered project will be approved or favorably reviewed by any agency.

(e)

Limitations.— Nothing in this section preempts, limits, or interferes with—

(1)

any practice of seeking, considering, or responding to public comment; or

(2)

any power, jurisdiction, responsibility, or authority that a Federal, State, or local governmental agency, metropolitan planning organization, Indian tribe, or project sponsor has with respect to carrying out a project or any other provisions of law applicable to any project, plan, or program.

SEC. 41008. Reports.

(a)

Report to Congress.—

(1)

In general.— Not later than April 15 of each year for 10 years beginning on the date of enactment of this Act, the Executive Director shall submit to Congress a report detailing the progress accomplished under this title during the previous fiscal year.

(2)

Contents.— The report described in paragraph (1) shall assess the performance of each participating agency and lead agency based on the best practices described in section 41002(c)(2)(B), including—

(A)

agency progress in making improvements consistent with those best practices; and

(B)

agency compliance with the performance schedules established under section 41002(c)(1)(C).

(3)

Opportunity to include comments.— Each councilmember, with input from the respective agency CERPO, shall have the opportunity to include comments concerning the performance of the agency in the report described in paragraph (1).

(b)

Comptroller General Report.— Not later than 3 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that describes—

(1)

agency progress in making improvements consistent with the best practices issued under section 41002(c)(2)(B); and

(2)

agency compliance with the performance schedules established under section 41002(c)(1)(C).

SEC. 41009. Funding for Governance, Oversight, and Processing of Environmental Reviews and Permits.

(a)

In General.— The heads of agencies listed in section 41002(b)(2)(B), with the guidance of the Director of the Office of Management and Budget and in consultation with the Executive Director, may, after public notice and opportunity for comment, issue regulations establishing a fee structure for project proponents to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations for covered projects.

(b)

Reasonable Costs.— As used in this section, the term “reasonable costs” shall include costs to implement the requirements and authorities required under sections 41002 and 41003, including the costs to agencies and the costs of operating the Council.

(c)

Fee Structure.— The fee structure established under subsection (a) shall—

(1)

be developed in consultation with affected project proponents, industries, and other stakeholders;

(2)

exclude parties for which the fee would impose an undue financial burden or is otherwise determined to be inappropriate; and

(3)

be established in a manner that ensures that the aggregate amount of fees collected for a fiscal year is estimated not to exceed 20 percent of the total estimated costs for the fiscal year for the resources allocated for the conduct of the environmental reviews and authorizations covered by this title, as determined by the Director of the Office of Management and Budget.

(d)

Environmental Review and Permitting Improvement Fund.—

(1)

In general.— All amounts collected pursuant to this section shall be deposited into a separate fund in the Treasury of the United States to be known as the “Environmental Review Improvement Fund” (referred to in this section as the “Fund”).

(2)

Availability.— Amounts in the Fund shall be available to the Executive Director, without appropriation or fiscal year limitation, solely for the purposes of administering, implementing, and enforcing this title, including the expenses of the Council.

(3)

Transfer.— The Executive Director, with the approval of the Director of the Office of Management and Budget, may transfer amounts in the Fund to other agencies to facilitate timely and efficient environmental reviews and authorizations for proposed covered projects.

(e)

Effect on Permitting.— The regulations adopted pursuant to subsection (a) shall ensure that the use of funds accepted under subsection (d) will not impact impartial decision-making with respect to environmental reviews or authorizations, either substantively or procedurally.

(f)

Transfer of Appropriated Funds.—

(1)

In general.— The heads of agencies listed in section 41002(b)(2)(B) shall have the authority to transfer, in accordance with section 1535 of title 31, United States Code, funds appropriated to those agencies and not otherwise obligated to other affected Federal agencies for the purpose of implementing the provisions of this title.

(2)

Limitation.— Appropriations under title 23, United States Code and appropriations for the civil works program of the Army Corps of Engineers shall not be available for transfer under paragraph (1).

SEC. 41010. Application.

This title applies to any covered project for which—

(1)

a notice is filed under section 41003(a)(1); or

(2)

an application or other request for a Federal authorization is pending before a Federal agency 90 days after the date of enactment of this Act.

SEC. 41011. Gao Report.

Not later than 3 years after the date of enactment of this Act, the Comptroller General of the United States shall submit to Congress a report that includes an analysis of whether the provisions of this title could be adapted to streamline the Federal permitting process for smaller projects that are not covered projects.

SEC. 41012. Savings Provision.

Nothing in this title amends the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

SEC. 41013. Sunset.

This title shall terminate 7 years after the date of enactment of this Act.

SEC. 41014. Placement.

The Office of the Law Revision Counsel is directed to place sections 41001 through 41013 of this title in chapter 55 of title 42, United States Code, as subchapter IV.

Division D — Miscellaneous

DIVISION D Miscellaneous

TITLE XLI Federal Permitting Improvement

SEC. 41001. Definitions.

SEC. 41002. Federal Permitting Improvement Council.

SEC. 41003. Permitting Process Improvement.

SEC. 41004. Interstate Compacts.

SEC. 41005. Coordination of Required Reviews.

SEC. 41006. Delegated State Permitting Programs.

SEC. 41007. Litigation, Judicial Review, and Savings Provision.

SEC. 41008. Reports.

SEC. 41009. Funding for Governance, Oversight, and Processing of Environmental Reviews and Permits.

SEC. 41010. Application.

SEC. 41011. Gao Report.

SEC. 41012. Savings Provision.

SEC. 41013. Sunset.

SEC. 41014. Placement.

TITLE XLII Additional Provisions

SEC. 42001. Gao Report on Refunds to Registered Vendors of Kerosene Used in Noncommercial Aviation.

TITLE XLIII Payments to Certified States and Indian Tribes

SEC. 43001. Payments from Abandoned Mine Reclamation Fund.

Cite this provision

Incoming references