42 USC 4370 - Permitting process improvement

View all text of Subchapter IV [§ 4370m - § 4370m-12]

§ 4370m–2. Permitting process improvement

(a) Project initiation and designation of participating agencies

(1) Notice

(A) In general

(B) Default designation

(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 4370m of this title and a statement of reasons supporting the assessment.

(D) ConfidentialityAny information relating to Native American natural, cultural, and historical resources submitted in a notice by a project sponsor under subparagraph (A) shall be—

(i) kept confidential; and

(ii) exempt from the disclosure requirements under section 552 of title 5 (commonly known as the “Freedom of Information Act”) and the Federal Advisory Committee Act (5 U.S.C. App.).1

1 See References in Text note below.

(2) Invitation

(A) In generalNot later than 21 calendar 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 4370m–4 of this title.

(B) Deadlines

(3) Participating and cooperating agencies

(A) In generalAn 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, and the Executive Director 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

(4) Effect of designationThe 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

(B) Redesignation of facilitating agency

(6) Change of facilitating or lead agency

(A) In general

(B) Resolution of dispute

(b) Permitting dashboard

(1) Requirement to maintain

(A) In general

(B) Specific and searchable entry

(2) Additions

(A) In general

(i) Existing projects

(ii) New projects

(iii) Projects other than covered projects(I) In general(II) RequirementsNot later than 14 days after the date on which the Executive Director directs the lead agency to create a specific entry on the Dashboard for a project described in subclause (I), the lead agency shall create and maintain a specific entry on the Dashboard for the project that contains—(aa) a comprehensive permitting timetable, as described in subsection (c)(2)(A);(bb) the status of the compliance of each lead agency, cooperating agency, and participating agency with the permitting timetable required under item (aa);(cc) any modifications of the permitting timetable required under item (aa), including an explanation as to why the permitting timetable was modified; and(dd) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant language of the community or communities most affected by the project, as that information becomes available.

(B) Explanation

(C) Final determinationNot 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 generalFor 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);(V) information on the status of mitigation measures that were agreed to as part of the environmental review and permitting process, including whether and when the mitigation measures have been fully implemented; and(VI) 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;

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

(iii) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant language of the community or communities most affected by the project, as that information becomes available.

(B) Deadline

(4) Postings by the Executive DirectorThe 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;

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

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

(1) Coordinated project plan

(A) In general

(B) Required informationThe 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.

(2) Permitting timetable

(A) Establishment

(B) Factors for considerationIn establishing the permitting timetable under subparagraph (A), the facilitating or lead agency shall follow the performance schedules established under section 4370m–1(c)(1)(C) of this title, 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.

(i) In general

(ii) Disputes

(iii) Final resolutionAny 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 generalThe 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, consults with the Executive Director regarding the potential modification not less than 15 days before engaging in the consultation under subclause (II);(II) the facilitating or lead agency, as applicable, and the affected cooperating agencies, after consultation with the participating agencies, the Executive Director, and the project sponsor, agree to a different completion date;(III) the facilitating agency or lead agency, as applicable, or the affected cooperating agency provides a written justification for the modification; and(IV) 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

(iii) Limitation on length of modifications(I) In general(II) Additional extensions

(iv) Limitation on judicial reviewThe 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

(F) Conforming to permitting timetables

(i) In general

(ii) Failure to conformIf a Federal agency fails to conform with an intermediate or final completion date for agency action on a covered project or reasonably believes the agency will fail to conform with a completion date 30 days before 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 reasonably believing the agency will fail 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

(ii) Failure to respond

(iii) Publication to Dashboard

(3) Cooperating State, local, or tribal governments

(A) State authorityIf 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

(i) In general

(ii) Submission to Executive Director

(D) Applicability

(d) Early consultationThe 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

(2) Effect on other designation

(3) Limitation on designation

(f) Reporting status of other projects on Dashboard

(1) In generalOn 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 and section 2348 of title 33 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

(Pub. L. 114–94, div. D, title XLI, § 41003, Dec. 4, 2015, 129 Stat. 1747; Pub. L. 117–58, div. G, title VIII, § 70801(c), Nov. 15, 2021, 135 Stat. 1289.)