42 U.S.C. § 4370m–2: Permitting process…

Summary

Project sponsors must tell the Executive Director and the facilitating agency when they start a covered project. The notice must say the project’s purpose, general location (with maps if available), the sponsor’s technical and financial ability, what federal reviews or approvals might be needed, and why the project is a covered project. Any information about Native American natural, cultural, or historic resources in the notice must be kept confidential and is exempt from FOIA and the Federal Advisory Committee Act. If no facilitating agency is already assigned, the agency that gets the notice becomes the facilitating agency. Within 21 days after a Dashboard entry is required, the facilitating or lead agency must list and invite likely federal and other agencies to join the review as participating or cooperating agencies and give them 14 days to respond. The Executive Director must keep an online “Permitting Dashboard” with a searchable entry for each covered project within 14 days of adding it or receiving a notice. Agencies must post key documents or links to them on the Dashboard within 5 business days. The lead or facilitating agency must, within 60 days of the Dashboard entry, make a short coordination plan and a permitting timetable with intermediate and final dates, update it quarterly, and work with agencies, the sponsor, and States. The Executive Director will help resolve timetable disputes first, and if still unresolved in 30 days, the Director of OMB with the CEQ Chair will step in to finish resolution within 60 days; that decision is final. Timetable changes need advance consultation, written reasons, and limits on total extensions unless OMB approves extra time and reports to Congress. Agencies must follow the timetable or explain 30 days before a likely miss, propose new dates, and report monthly until action is finished. States, local, and tribal governments can opt in and be coordinated by the lead agency. The lead agency must offer a fast early consultation process so sponsors can learn what issues and tools are needed before formal review. A lead agency may name participating agencies as cooperating agencies under CEQ rules, but an agency must be a participating agency first. On request, DOT and the Army should try to give Dashboard information for very large projects (over $200,000,000 that need an EIS); listing them does not make those projects subject to these rules.

Title 42, §4370m–2

The Public Health and Welfare, Source: USLM XML via OLRC

(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 4370m–1(c)(1)(B) of this title 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 4370m of this title and a statement of reasons supporting the assessment.

(D)Confidentiality

Any 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.).

(2)Invitation

(A)In general

Not 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

Each invitation made under subparagraph (A) shall include a 14 calendar day 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, 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

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 subchapter.

(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 4370m–1(c)(1)(B) of this title.

(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 (2) Additions

(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 4370m–1(c)(1)(A) of this title.

(B)Specific and searchable entry

The Dashboard shall include a specific and searchable entry for each 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);

(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

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 coordinated 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 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.

(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, 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

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 subchapter applies under section 4370m–9 of this title.

(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 intermediate and final completion dates set forth in the permitting timetable established under subparagraph (A), or with any intermediate or final completion date modified under subparagraph (D).

(ii)Failure to conform

If 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

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 subchapter 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 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

Inclusion on the Dashboard of information regarding projects subject to section 139 of title 23 or section 2348 of title 33 shall not subject those projects to any requirements of this subchapter.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Federal Advisory Committee Act, referred to in subsec. (a)(1)(D)(ii), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, which was set out in the Appendix to Title 5, Government Organization and Employees, and was substantially repealed and restated in chapter 10 (§ 1001 et seq.) of Title 5 by Pub. L. 117–286, §§ 3(a), 7, Dec. 27, 2022, 136 Stat. 4197, 4361. For disposition of sections of the Act into chapter 10 of Title 5, see Disposition Table preceding section 101 of Title 5. NEPA, referred to in subsec. (f)(1)(B), means the National Environmental Policy Act of 1969, Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to this chapter. See section 4370m(16) of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 4321 of this title and Tables. Codification Section was enacted as part of the Fixing America’s Surface Transportation Act, also known as the FAST Act, and not as part of the National Environmental Policy Act of 1969 which comprises this chapter.

Amendments

2021—Subsec. (a)(1)(D). Pub. L. 117–58, § 70801(c)(1)(A), added subpar. (D). Subsec. (a)(2)(A). Pub. L. 117–58, § 70801(c)(1)(B)(i), substituted “21 calendar days” for “45 days” in introductory provisions. Subsec. (a)(2)(B). Pub. L. 117–58, § 70801(c)(1)(B)(ii), inserted “14 calendar day” before “deadline”. Subsec. (a)(3)(A). Pub. L. 117–58, § 70801(c)(1)(C), inserted “and the Executive Director” after “as applicable,” in introductory provisions. Subsec. (b)(2)(A)(iii). Pub. L. 117–58, § 70801(c)(2)(A), added cl. (iii). Subsec. (b)(3)(A)(i)(V), (VI). Pub. L. 117–58, § 70801(c)(2)(B)(i), added subcl. (V), redesignated former subcl. (V) as (VI), and struck out “and” at end of subcl. (VI). Subsec. (b)(3)(A)(iii). Pub. L. 117–58, § 70801(c)(2)(B)(ii), (iii), added cl. (iii). Subsec. (c)(2)(A). Pub. L. 117–58, § 70801(c)(3)(A), substituted “coordinated” for “coordination”. Subsec. (c)(2)(D)(i). Pub. L. 117–58, § 70801(c)(3)(B)(i), (ii), added subcl. (I) and redesignated former subcls. (I) to (III) as (II) to (IV), respectively. Subsec. (c)(2)(D)(i)(II). Pub. L. 117–58, § 70801(c)(3)(B)(iii), inserted “, the Executive Director,” after “participating agencies”. Subsec. (c)(2)(F)(i). Pub. L. 117–58, § 70801(c)(3)(C)(i), inserted “intermediate and final” before “completion dates” and “intermediate or final” before “completion date”. Subsec. (c)(2)(F)(ii). Pub. L. 117–58, § 70801(c)(3)(C)(ii)(I), substituted “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” for “a completion date for agency action on a covered project or is at significant risk of failing to conform with” in introductory provisions. Subsec. (c)(2)(F)(ii)(I). Pub. L. 117–58, § 70801(c)(3)(C)(ii)(II), substituted “reasonably believing the agency will fail to conform” for “significantly risking failing to conform”.

§4370m–2 Permitting Process Improvement

Summary

Title 42, §4370m–2

Notes & Related Subsidiaries

Editorial Notes

References in Text

Short Title

Amendments

Citations & Metadata