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S. 2324: Federal Permitting Reform and Jobs Act


The text of the bill below is as of Jul 13, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 2324

IN THE SENATE OF THE UNITED STATES

July 13, 2021

(for himself, Ms. Sinema, Mr. Manchin, and Mr. Sullivan) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs

A BILL

To amend the FAST Act to improve the Federal permitting process, and for other purposes.

1.

Short title

This Act may be cited as the Federal Permitting Reform and Jobs Act.

2.

Federal permitting improvement

(a)

Definitions

Section 41001 of the FAST Act (42 U.S.C. 4370m) is amended—

(1)

in paragraph (3), by inserting and any interagency consultation after issued by an agency;

(2)

in paragraph (4), by striking means and all that follows through the period at the end of subparagraph (B) and inserting has the meaning given the term in section 1508.1 of title 40, Code of Federal Regulations (or successor regulations).;

(3)

in paragraph (5), by striking Federal Infrastructure Permitting Improvement Steering Council and inserting Federal Permitting Improvement Steering Council;

(4)

in paragraph (6)(A)—

(A)

in clause (ii), by striking or at the end;

(B)

by redesignating clause (iii) as clause (iv); and

(C)

by inserting after clause (ii) the following:

(iii)

is—

(I)

subject to NEPA;

(II)

sponsored by an Indian Tribe (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)), an Alaska Native Corporation, a Native Hawaiian organization (as defined in section 6207 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7517)), the Department of Hawaiian Home Lands, or the Office of Hawaiian Affairs; and

(III)

located on land owned or under the jurisdiction of the entity that sponsors the activity under subclause (II); or

; and

(5)

in paragraph (8), by striking means and all that follows through the period at the end and inserting has the meaning given the term in section 1508.1 of title 40, Code of Federal Regulations (or successor regulations).

(b)

Federal Permitting Improvement Steering Council

Section 41002 of the FAST Act (42 U.S.C. 4370m–1) is amended—

(1)

in the section heading, by striking Federal Permitting Improvement Council and inserting Federal Permitting Improvement Steering Council;

(2)

in subsection (b)(2)(A)—

(A)

in clause (i)—

(i)

by striking Each and inserting the following:

(I)

In general

Each

; and

(ii)

by adding at the end the following:

(II)

Redesignation

If an individual listed in subparagraph (B) designates a different member to serve on the Council than the member designated under subclause (I), the individual shall notify the Executive Director of the designation by not later than 30 days after the date on which the designation is made.

; and

(B)

in clause (iii)(II), by striking a deputy secretary (or the equivalent) or higher and inserting the applicable agency coun­cil­mem­ber;

(3)

in subsection (c)—

(A)

in paragraph (1)(C)(ii)—

(i)

by striking subclause (I) and inserting the following:

(I)

In general

The performance schedules shall reflect employment of the most sound and efficient applicable processes, including the alignment of Federal reviews of projects, reduction of permitting and project delivery time, and consideration of the best practices for public participation.

;

(ii)

by redesignating subclause (II) as subclause (III);

(iii)

by inserting after subclause (I) the following:

(II)

Goal

(aa)

In general

To the maximum extent practicable, and consistent with applicable Federal law, the Executive Director, in consultation with the Council, shall aim to develop rec­om­mended performance schedules under clause (i) of not more than 2 years.

(bb)

Exception

If a rec­om­mended performance schedule developed under clause (i) exceeds 2 years, the relevant agencies, in consultation with the Executive Director and the Council, shall explain in that rec­om­mended performance schedule the factors that cause the environmental reviews and authorizations in that category of covered projects to take longer than 2 years.

; and

(iv)

in subclause (III)(bb) (as so redesignated), by striking on the basis of data from the preceding 2 calendar years and inserting based on relevant historical data, as determined by the Executive Director,;

(B)

in paragraph (2)(B)—

(i)

in the matter preceding clause (i), by striking later than and all that follows through practices for and inserting less frequently than annually, the Council shall issue recommendations on the best practices for improving the Federal permitting process for covered projects, which may include;

(ii)

in clause (i)—

(I)

by striking stakeholder engagement, including fully considering and inserting “stakeholder engagement, including—

(II)

fully considering

; and

(II)

by inserting before subclause (II) (as added by subclause (I)) the following:

(I)

engaging with Native American stakeholders to ensure that project sponsors and agencies identify potential natural, archeological, and cultural resources and locations of historic and religious significance in the area of a covered project; and

;

(iii)

in clause (vii), by striking and at the end;

(iv)

by redesignating clause (viii) as clause (x); and

(v)

by inserting after clause (vii) the following:

(viii)

in coordination with the Executive Director, improving preliminary engagement with project sponsors in developing coordinated project plans;

(ix)

using programmatic assessments, templates, and other tools based on the best available science and data; and

; and

(C)

in paragraph (3)(A), by inserting , including agency compliance with intermediate and final completion dates described in coordinated project plans after authorizations; and

(4)

by striking subsection (d).

(c)

Permitting process improvement

Section 41003 of the FAST Act (42 U.S.C. 4370m–2) is amended—

(1)

in subsection (a)—

(A)

in paragraph (1), by adding at the end the following:

(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, United States Code (commonly known as the Freedom of Information Act), and the Federal Advisory Committee Act (5 U.S.C. App.).

;

(B)

in paragraph (2)—

(i)

in subparagraph (A), in the matter preceding clause (i), by striking 45 days and inserting 21 calendar days; and

(ii)

in subparagraph (B), by inserting 14 calendar day before deadline; and

(C)

in paragraph (3)(A), in the matter preceding clause (i), by inserting and the Executive Director after as applicable,;

(2)

in subsection (b)—

(A)

in paragraph (2)(A), by adding at the end the following:

(iii)

Projects other than covered projects

(I)

In general

The Executive Director may direct a lead agency to create a specific entry on the Dashboard for a project that is not a covered project and is under review by the lead agency if the Executive Director determines that a Dashboard entry for that project is in the interest of transparency.

(II)

Requirements

Not 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.

; and

(B)

in paragraph (3)(A)—

(i)

in clause (i)—

(I)

in subclause (IV), by striking and at the end;

(II)

by redesignating subclause (V) as subclause (VI);

(III)

by inserting after subclause (IV) the following:

(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

; and

(IV)

in subclause (VI) (as so redesignated), by striking and at the end;

(ii)

in clause (ii), by striking the period at the end and inserting ; and; and

(iii)

by adding at the end the following:

(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.

; and

(3)

in subsection (c)(2)—

(A)

in subparagraph (A), strike coordination and insert coordinated;

(B)

in subparagraph (D)(i)—

(i)

by redesignating subclauses (I) through (III) as subclauses (II) through (IV), respectively;

(ii)

by inserting before subclause (II) (as so redesignated) the following:

(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);

; and

(iii)

in subclause (II) (as so redesignated), by inserting , the Executive Director, after participating agencies; and

(C)

in subparagraph (F)—

(i)

in clause (i)—

(I)

by inserting intermediate and final before completion dates; and

(II)

by inserting intermediate or final before completion date; and

(ii)

in clause (ii)—

(I)

in the matter preceding subclause (I), by striking a completion date for agency action on a covered project or is at significant risk of failing to conform with and inserting 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; and

(II)

in subclause (I), by striking significantly risking failing to conform and inserting reasonably believing the agency will fail to conform.

(d)

Coordination of required reviews

Section 41005 of the FAST Act (42 U.S.C. 4370m–4) is amended—

(1)

in subsection (a)—

(A)

in paragraph (1), by striking and at the end;

(B)

in paragraph (2), by striking the period at the end and inserting ; and; and

(C)

by adding at the end the following:

(3)

where an environmental impact statement is required for a project, prepare a single, joint interagency environmental impact statement for the project unless the lead agency provides justification in the coordinated project plan that multiple environmental documents are more efficient for project review and authorization.

;

(2)

in subsection (b)—

(A)

by striking (1) State environmental documents; supplemental documents.—;

(B)

by redesignating subparagraphs (A) through (E) as paragraphs (1) through (5), respectively, and indenting appropriately;

(C)

in paragraph (1) (as so redesignated)—

(i)

by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; and

(ii)

in subparagraph (A) (as so redesignated)—

(I)

by striking State laws and procedures and inserting the laws and procedures of a State or Indian Tribe (as defined in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130)); and

(II)

by inserting developed pursuant to laws and procedures of that State or Indian Tribe (as so defined) that are of equal or greater rigor to each applicable Federal law and procedure, and after Council on Environmental Quality,;

(D)

in paragraph (2) (as so redesignated), by striking subparagraph (A) each place it appears and inserting paragraph (1);

(E)

in paragraph (3) (as so redesignated)—

(i)

in the matter preceding clause (i), by striking subparagraph (A) and inserting paragraph (1); and

(ii)

by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately;

(F)

in paragraph (4) (as so redesignated)—

(i)

in the matter preceding clause (i), by striking subparagraph (C) and inserting paragraph (3); and

(ii)

by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and indenting appropriately; and

(G)

in paragraph (5) (as so redesignated)—

(i)

by striking subparagraph (A) and inserting paragraph (1); and

(ii)

by striking subparagraph (C) and inserting paragraph (3);

(3)

in subsection (c)(4)—

(A)

in the matter preceding subparagraph (A), by striking determines that the development of the higher level of detail will not prevent— and inserting determines that—;

(B)

in subparagraph (A), by inserting the development of the higher level of detail will not prevent before the lead agency; and

(C)

by striking subparagraph (B) and inserting the following:

(B)

the preferred and other alternatives are developed in sufficient detail to enable the public to comment on the alternatives.

;

(4)

by redesignating subsection (f) as subsection (g); and

(5)

by inserting after subsection (e) the following:

(f)

Record of decision

When an environmental impact statement is prepared, Federal agencies must, to the maximum extent practicable, issue a record of decision not later than 90 days after the date on which the final environmental impact statement is issued.

.

(e)

Litigation, judicial review, and savings provision

Section 41007 of the FAST Act (42 U.S.C. 4370m–6) is amended—

(1)

in subsection (a)(1)—

(A)

in subparagraph (A)—

(i)

by striking the action and inserting the claim; and

(ii)

by striking of the final record of decision or approval or denial of a permit and inserting of notice of final agency action on the authorization; and

(B)

in subparagraph (B)(i), by striking the action and inserting the claim; and

(2)

in subsection (e), in the matter preceding paragraph (1), by striking this section and inserting this title.

(f)

Reports

Section 41008 of the FAST Act (42 U.S.C. 4370m–7) is amended by striking subsection (a) and inserting the following:

(a)

Reports to Congress

(1)

Executive Director annual report

(A)

In general

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

(B)

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 subparagraph (A).

(2)

Quarterly agency performance report

The Executive Director shall submit to Congress a quarterly report evaluating agency compliance with the provisions of this title, which shall include a description of the implementation and adherence of each agency to the coordinated project plan and permitting timetable requirements under section 41003(c).

(3)

Agency best practices report

Not later than April 15 of each year, each participating agency and lead agency shall submit to Congress and the Director of the Office of Management and Budget a report assessing the performance of the agency in implementing the best practices described in section 41002(c)(2)(B).

.

(g)

Funding for governance, oversight, and processing of environmental reviews and permits

Section 41009 of the FAST Act (42 U.S.C. 4370m–8) is amended—

(1)

by striking subsection (a) and inserting the following:

(a)

In general

For the purpose of carrying out this title, the Executive Director, in consultation with the heads of the agencies listed in section 41002(b)(2)(B) and with the guidance of the Director of the Office of Management and Budget, may, after public notice and opportunity for comment, issue regulations establishing a fee structure for sponsors of covered projects to reimburse the United States for reasonable costs incurred in conducting environmental reviews and authorizations for covered projects.

;

(2)

in subsection (b), by striking and 41003 and inserting through 41008; and

(3)

in subsection (d)—

(A)

in the subsection heading, by striking and Permitting; and

(B)

by striking paragraphs (2) and (3) and inserting the following:

(2)

Availability

Amounts in the Fund shall be available to the Executive Director, without fiscal year limitation, solely for the purposes of administering, implementing, and enforcing this title, including the expenses of the Council, staffing of the Office of the Executive Director, and support of the role of the Council as a Federal center for permitting excellence, which may include supporting interagency detailee and rotation opportunities, advanced training, enhanced support for agency project managers, and fora for sharing information and lessons learned.

(3)

Transfer

For the purpose of carrying out this title, the Executive Director, with the approval of the Director of the Office of Management and Budget, may transfer amounts in the Fund to other Federal agencies and State, Tribal, and local governments to facilitate timely and efficient environmental reviews and authorizations for covered projects and other projects under this title, including direct reimbursement agreements with agency CERPOs, reimbursable agreements, and approval and consultation processes and staff for covered projects.

.

(h)

Sunset

Section 41013 of the FAST Act (42 U.S.C. 4370m–12) is repealed.

(i)

Technical correction

Section 41002(b)(2)(A)(ii) of the FAST Act (42 U.S.C. 4370m–1(b)(2)(A)(ii)) is amended by striking councilmem-ber and inserting councilmember.

(j)

Clerical amendment

The table of contents in section 1(b) of the FAST Act (Public Law 114–94; 129 Stat. 1319) is amended by striking the item relating to section 41002 and inserting the following:

Sec. 41002. Federal Permitting Improvement Steering Council.

.