33 USC 2348 - Project acceleration

View all text of Subchapter V [§ 2280 - § 2357]

§ 2348. Project acceleration

(a) DefinitionsIn this section:

(1) Environmental impact statement

(2) Environmental review process

(A) In general

(B) Inclusions

(3) Federal jurisdictional agency

(4) Federal lead agency

(5) Project

(6) Project sponsor

(7) Project study

(b) Applicability

(1) In generalThis section—

(A) shall apply to each project study that is initiated after June 10, 2014, and for which an environmental impact statement is prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(B) may be applied, to the extent determined appropriate by the Secretary, to other project studies initiated after June 10, 2014, and for which an environmental review process document is prepared under that Act.

(2) Flexibility

(3) List of project studies

(A) In generalThe Secretary shall annually prepare, and make publicly available, a separate list of each study that the Secretary has determined—

(i) meets the standards described in paragraph (1); and

(ii) does not have adequate funding to make substantial progress toward the completion of the project study.

(B) Inclusions

(1) In general

(2) Coordinated review

(3) Timing

(d) Lead agencies

(1) Joint lead agencies

(A) In general

(B) Project sponsor as joint lead agencyA project sponsor that is a State or local governmental entity may—

(i) with the concurrence of the Secretary, serve as a joint lead agency with the Federal lead agency for purposes of preparing any environmental document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(ii) prepare any environmental review process document under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) required in support of any action or approval by the Secretary if—(I) the Secretary provides guidance in the preparation process and independently evaluates that document;(II) the project sponsor complies with all requirements applicable to the Secretary under—(aa) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);(bb) any regulation implementing that Act; and(cc) any other applicable Federal law; and(III) the Secretary approves and adopts the document before the Secretary takes any subsequent action or makes any approval based on that document, regardless of whether the action or approval of the Secretary results in Federal funding.

(2) DutiesThe Secretary shall ensure that—

(A) the project sponsor complies with all design and mitigation commitments made jointly by the Secretary and the project sponsor in any environmental document prepared by the project sponsor in accordance with this subsection; and

(B) any environmental document prepared by the project sponsor is appropriately supplemented to address any changes to the project the Secretary determines are necessary.

(3) Adoption and use of documentsAny environmental document prepared in accordance with this subsection shall be adopted and used by any Federal agency making any determination related to the project study to the same extent that the Federal agency could adopt or use a document prepared by another Federal agency under—

(A) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(B) parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations).

(4) Roles and responsibility of lead agencyWith respect to the environmental review process for any project study, the Federal lead agency shall have authority and responsibility—

(A) to take such actions as are necessary and proper and within the authority of the Federal lead agency to facilitate the expeditious resolution of the environmental review process for the project study; and

(B) to prepare or ensure that any required environmental impact statement or other environmental review document for a project study required to be completed under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) is completed in accordance with this section and applicable Federal law.

(e) Participating and cooperating agencies

(1) Identification of jurisdictional agenciesWith respect to carrying out the environmental review process for a project study, the Secretary shall identify, as early as practicable in the environmental review process, all Federal, State, and local government agencies and Indian tribes that may—

(A) have jurisdiction over the project;

(B) be required by law to conduct or issue a review, analysis, opinion, or statement for the project study; or

(C) be required to make a determination on issuing a permit, license, or other approval or decision for the project study.

(2) State authorityIf the environmental review process is being implemented by the Secretary for a project study within the boundaries of a State, the State, consistent with State law, may choose to participate in the process and to make subject to the process all State agencies that—

(A) have jurisdiction over the project;

(B) are required to conduct or issue a review, analysis, opinion, or statement for the project study; or

(C) are required to make a determination on issuing a permit, license, or other approval or decision for the project study.

(3) Invitation

(A) In general

(B) Deadline

(4) Procedures

(5) Federal cooperating agenciesAny Federal agency that is invited by the Federal lead agency to participate in the environmental review process for a project study shall be designated as a cooperating agency by the Federal lead agency unless the invited agency informs the Federal lead agency, in writing, by the deadline specified in the invitation that the invited agency—

(A)

(i)(I) has no jurisdiction or authority with respect to the project;(II) has no expertise or information relevant to the project; or(III) does not have adequate funds to participate in the project; and

(ii) does not intend to submit comments on the project; or

(B) does not intend to submit comments on the project.

(6) Administration

(7) Effect of designationDesignation as a participating or cooperating agency under this subsection shall not imply that the participating or cooperating agency—

(A) supports a proposed project; or

(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.

(8) Concurrent reviewsEach participating or cooperating agency shall—

(A) carry out the obligations of that agency under other applicable law concurrently and in conjunction with the required environmental review process, unless doing so would prevent the participating or cooperating agency from conducting needed analysis or otherwise carrying out those obligations; and

(B) 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.

(f) Programmatic compliance

(1) In generalThe Secretary shall issue guidance regarding the use of programmatic approaches to carry out the environmental review process that—

(A) eliminates repetitive discussions of the same issues;

(B) focuses on the actual issues ripe for analyses at each level of review;

(C) establishes a formal process for coordinating with participating and cooperating agencies, including the creation of a list of all data that is needed to carry out an environmental review process; and

(D) complies with—

(i) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(ii) all other applicable laws.

(2) RequirementsIn carrying out paragraph (1), the Secretary shall—

(A) as the first step in drafting guidance under that paragraph, consult with relevant Federal, State, and local governmental agencies, Indian tribes, and the public on the appropriate use and scope of the programmatic approaches;

(B) emphasize the importance of collaboration among relevant Federal, State, and local governmental agencies, and Indian tribes in undertaking programmatic reviews, especially with respect to including reviews with a broad geographical scope;

(i) promote transparency, including of the analyses and data used in the environmental review process, the treatment of any deferred issues raised by Federal, State, and local governmental agencies, Indian tribes, or the public, and the temporal and special scales to be used to analyze those issues;

(ii) use accurate and timely information in the environmental review process, including—(I) criteria for determining the general duration of the usefulness of the review; and(II) the timeline for updating any out-of-date review;

(iii) describe—(I) the relationship between programmatic analysis and future tiered analysis; and(II) the role of the public in the creation of future tiered analysis; and

(iv) are available to other relevant Federal, State, and local governmental agencies, Indian tribes, and the public;

(D) allow not fewer than 60 days of public notice and comment on any proposed guidance; and

(E) address any comments received under subparagraph (D).

(g) Coordinated reviews

(1) Coordination plan

(A) Establishment

(i) In general

(ii) Incorporation

(B) Schedule

(i) In general

(ii) Factors for considerationIn establishing a schedule, the Secretary shall consider factors such as—(I) the responsibilities of participating and cooperating agencies under applicable laws;(II) the resources available to the project sponsor, joint lead agency, and other relevant Federal and State agencies, as applicable;(III) the overall size and complexity of the project;(IV) the overall schedule for and cost of the project; and(V) the sensitivity of the natural and historical resources that could be affected by the project.

(iii) ModificationsThe Secretary may—(I) lengthen a schedule established under clause (i) for good cause; and(II) shorten a schedule only with concurrence of the affected participating and cooperating agencies and the project sponsor or joint lead agency, as applicable.

(iv) DisseminationA copy of a schedule established under clause (i) shall be—(I) provided to each participating and cooperating agency and the project sponsor or joint lead agency, as applicable; and(II) made available to the public.

(2) Comment deadlinesThe Federal lead agency shall establish the following deadlines for comment during the environmental review process for a project study:

(A) Draft environmental impact statementsFor comments by Federal and States 1

1 So in original. Probably should be “State”.

agencies and the public on a draft environmental impact statement, a period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of the draft environmental impact statement, unless—

(i) a different deadline is established by agreement of the Federal lead agency, the project sponsor or joint lead agency, as applicable, and all participating and cooperating agencies; or

(ii) the deadline is extended by the Federal lead agency for good cause.

(B) Other environmental review processesFor all other comment periods established by the Federal lead agency for agency or public comments in the environmental review process, a period of not more than 30 days after the date on which the materials on which comment is requested are made available, unless—

(i) a different deadline is established by agreement of the Federal lead agency, the project sponsor, or joint lead agency, as applicable, and all participating and cooperating agencies; or

(ii) the deadline is extended by the Federal lead agency for good cause.

(3) Deadlines for decisions under other lawsIn any case in which a decision under any Federal law relating to a project study, including the issuance or denial of a permit or license, is required to be made by the date described in subsection (h)(5)(B)(ii), the Secretary shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives—

(A) as soon as practicable after the 180-day period described in subsection (h)(5)(B)(ii), an initial notice of the failure of the Federal agency to make the decision; and

(B) every 60 days thereafter until such date as all decisions of the Federal agency relating to the project study have been made by the Federal agency, an additional notice that describes the number of decisions of the Federal agency that remain outstanding as of the date of the additional notice.

(4) Involvement of the public

(5) Transparency reporting

(A) Reporting requirements

(B) Project study transparency

(h) Issue identification and resolution

(1) Cooperation

(2) Federal lead agency responsibilities

(A) In general

(B) Data sources

(3) Cooperating and participating agency responsibilities

(4) Accelerated issue resolution and elevation

(A) In generalOn the request of a participating or cooperating agency or project sponsor, the Secretary shall convene an issue resolution meeting with the relevant participating and cooperating agencies and the project sponsor or joint lead agency, as applicable, to resolve issues that may—

(i) delay completion of the environmental review process; or

(ii) result in denial of any approval required for the project study under applicable laws.

(B) Meeting date

(D) Elevation of issue resolution

(E) Convention by Secretary

(5) Financial penalty provisions

(A) In general

(B) Failure to decide

(i) In generalIf a Federal jurisdictional agency fails to render a decision required under any Federal law relating to a project study that requires the preparation of an environmental impact statement or environmental assessment, including the issuance or denial of a permit, license, statement, opinion, or other approval by the date described in clause (ii), the amount of funds made available to support the office of the head of the Federal jurisdictional agency shall be reduced by an amount of funding equal to the amounts specified in subclause (I) or (II) and those funds shall be made available to the division of the Federal jurisdictional agency charged with rendering the decision by not later than 1 day after the applicable date under clause (ii), and once each week thereafter until a final decision is rendered, subject to subparagraph (C)—(I) $20,000 for any project study requiring the preparation of an environmental assessment or environmental impact statement; or(II) $10,000 for any project study requiring any type of review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) other than an environmental assessment or environmental impact statement.

(ii) Description of dateThe date referred to in clause (i) is the later of—(I) the date that is 180 days after the date on which an application for the permit, license, or approval is complete; and(II) the date that is 180 days after the date on which the Federal lead agency issues a decision on the project under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(i) In general

(ii) Failure to decide

(iii) Aggregate

(D) No fault of agency

(i) In generalA transfer of funds under this paragraph shall not be made if the applicable agency described in subparagraph (A) notifies, with a supporting explanation, the Federal lead agency, cooperating agencies, and project sponsor, as applicable, that—(I) the agency has not received necessary information or approvals from another entity in a manner that affects the ability of the agency to meet any requirements under Federal, State, or local law;(II) significant new information, including from public comments, or circumstances, including a major modification to an aspect of the project, requires additional analysis for the agency to make a decision on the project application; or(III) the agency lacks the financial resources to complete the review under the scheduled time frame, including a description of the number of full-time employees required to complete the review, the amount of funding required to complete the review, and a justification as to why not enough funding is available to complete the review by the deadline.

(ii) Lack of financial resourcesIf the agency provides notice under clause (i)(III), the Inspector General of the agency shall—(I) conduct a financial audit to review the notice; and(II) not later than 90 days after the date on which the review described in subclause (I) is completed, submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the notice.

(E) Limitation

(F) Effect of paragraph

(i) Memorandum of agreements for early coordination

(1) Sense of CongressIt is the sense of Congress that—

(A) the Secretary and other Federal agencies with relevant jurisdiction in the environmental review process should cooperate with each other, State agencies, and Indian tribes on environmental review and project delivery activities at the earliest practicable time to avoid delays and duplication of effort later in the process, prevent potential conflicts, and ensure that planning and project development decisions reflect environmental values; and

(B) the cooperation referred to in subparagraph (A) should include the development of policies and the designation of staff that advise planning agencies and project sponsors of studies or other information foreseeably required for later Federal action and early consultation with appropriate State and local agencies and Indian tribes.

(2) Technical assistance

(3) Memorandum of agency agreement

(j) LimitationsNothing in this section preempts or interferes with—

(1) any obligation to comply with the provisions of any Federal law, including—

(A) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and

(B) any other Federal environmental law;

(2) the reviewability of any final Federal agency action in a court of the United States or in the court of any State;

(3) any requirement for seeking, considering, or responding to public comment; or

(4) any power, jurisdiction, responsibility, duty, or authority that a Federal, State, or local governmental agency, Indian tribe, or project sponsor has with respect to carrying out a project or any other provision of law applicable to projects.

(k) Timing of claims

(1) Timing

(A) In general

(B) Applicability

(2) New information

(A) In general

(B) Separate action

(l) Categorical exclusions

(1) In generalNot later than 180 days after June 10, 2014, the Secretary shall—

(A) survey the use by the Corps of Engineers of categorical exclusions in projects since 2005;

(B) publish a review of the survey that includes a description of—

(i) the types of actions that were categorically excluded or could be the basis for developing a new categorical exclusion; and

(ii) any requests previously received by the Secretary for new categorical exclusions; and

(2) New categorical exclusions

(m) Review of project acceleration reforms

(1) In generalThe Comptroller General of the United States shall—

(A) assess the reforms carried out under this section; and

(B) not later than 5 years and not later than 10 years after June 10, 2014, submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report that describes the results of the assessment.

(2) ContentsThe reports under paragraph (1) shall include an evaluation of impacts of the reforms carried out under this section on—

(A) project delivery;

(B) compliance with environmental laws; and

(n) Performance measurement

(o) Implementation guidance

(Pub. L. 110–114, title II, § 2045, Nov. 8, 2007, 121 Stat. 1103; Pub. L. 113–121, title I, § 1005(a)(1), June 10, 2014, 128 Stat. 1199.)