42 U.S.C. § 4370m–2 — Permitting process improvement
submitted 11 years ago by Pub. L. 114-94 to r/title-42-THE-PUBLIC-HEALTH-AND-WELFARE · 3,677 words · no verdicts yet
This section sets the process for starting a covered project, assigning agencies, tracking reviews on the Permitting Dashboard, and creating coordinated plans and schedules. It also governs State participation, early consultation, cooperating agencies, and information about certain excluded projects.
(a) Project* initiation. (1) A project sponsor* must notify the Executive Director* and facilitating agency* when a proposed covered project* starts. If no facilitating agency* has been designated, the receiving agency becomes it. The notice must state* the project’s purposes; briefly describe its location and available geographic information about environmental, cultural, and historic resources; state the sponsor’s technical and financial ability; identify expected Federal financing, reviews, and authorizations; and explain why the project is covered. Information about Native American natural, cultural, and historic resources must remain confidential and is exempt from the cited disclosure laws. (2) Within 21 calendar days after the required Dashboard* entry, the facilitating or lead agency* must identify Federal and non-Federal entities likely to have responsibilities and invite each Federal agency to participate or cooperate. The invitation must allow 14 calendar days to respond. (3) An invited agency is designated unless it informs both the facilitating or lead agency, as applicable, and the Executive Director* in writing before the deadline that it has no jurisdiction or authority, or does not intend to exercise authority related to or submit comments on the proposed project. The Executive Director may later designate an agency that opted out if circumstances changed. (4) Designation gives a participating agency* no new jurisdiction and expands no cooperating agency* authority. (5) Once a lead agency is established, it takes over the facilitating agency’s duties; the former facilitating agency may become cooperating or participating. (6) On request and new scope or nature information, the Executive Director may change the facilitating or lead agency; the CEQ Chairman resolves disputes.
(b) Dashboard. (1) The Executive Director, with the General Services Administrator*, must maintain an online “Permitting Dashboard” tracking Federal reviews and authorizations for inventoried covered projects, with a searchable entry for each. (2) An entry must be created within 14 days after inventory* addition or notice, unless the project is determined not covered. The Executive Director may require an entry for a noncovered project to promote transparency; that entry must show a comprehensive timetable, agency compliance, timetable changes and reasons, and public-meeting, hearing, and comment information in English and the predominant affected-community language. A sponsor may explain within 14 days why a rejected project is covered. Within 14 days, the Executive Director must make a final determination and create an entry if covered. (3) The facilitating or lead agency and each cooperating and participating agency must post links, consistent with law, to the notice; applications and supporting documents or access instructions; material agency actions and supporting documents; mitigation status and completion; directly related litigation status and available court documents; and public-meeting, hearing, and comment information in English and the predominant affected-community language. Documents not linked elsewhere must also be posted. These items must be posted within five business days after the agency receives them. (4) The Executive Director must post the timetable, agency compliance status, timetable changes and reasons, and memoranda of understanding.
(c) Coordination. (1) Within 60 days after the required Dashboard entry, the facilitating or lead agency must create, with each coordinating agency and participating agency, a concise Coordinated Project Plan, updated at least quarterly. It must list responsible entities and roles; include a comprehensive timetable for Federal and, as practicable, State reviews and authorizations; discuss known legally required avoidance, minimization, and mitigation strategies; and schedule required public and Tribal outreach. It may be in a memorandum of understanding. (2) The plan must include intermediate and final dates for each agency. The facilitating or lead agency consults the agencies, sponsor, and affected State, and generally obtains cooperating-agency concurrence. It follows the Executive Director’s schedules but may consider project size and complexity, agency resources, economic importance, resource sensitivity, financing, and nearby similar reviews. The Executive Director mediates timetable disputes. If unresolved after 30 days, OMB, consulting CEQ, directs resolution by day 60; that decision is final and not judicially reviewable. The facilitating or lead agency may modify a timetable only after consulting the Executive Director about the potential modification at least 15 days before the later consultation, followed by the required consultation, agreement on a new date, written justification, and, for extensions over 30 days, Executive Director approval based on the listed factors. Dates cannot be changed within 30 days of completion. Except for matters outside government control, total extensions generally cannot exceed half the original schedule; OMB may allow more after consulting the sponsor, must report the reason to Congress within five days, and the agency must report progress yearly until completion or withdrawal. Specified Executive Director and OMB decisions are not judicially reviewable. Timetables must fit other legal deadlines and cannot prevent legal duties. Agencies must meet dates. If an agency fails to meet a date or reasonably believes it will fail to meet a date 30 days before that date, it must promptly explain the specific reasons and propose an alternative, establish one with the facilitating or lead agency, and report monthly until final action. If the agency reasonably doubts the sponsor’s technical or financial ability, it may request an updated statement. If the sponsor does not respond within 30 days, the Executive Director publishes notice, tolls timetable dates, and relieves agencies from schedule compliance until an updated statement is submitted. (3) A State may choose, consistently with State law, to participate and include its agencies with jurisdiction, review duties, or permitting decisions. Federal agencies must coordinate with participating State, local, or Tribal agencies; coordination plans should be memoranda submitted to the Executive Director. This subchapter applies to a State or State authorization* only if the State chose to participate.
(d) Early consultation. Within 60 days after a sponsor’s request, the facilitating or lead agency must provide a fast process for the sponsor to confer with each involved agency and receive information about planning tools, agency and public concerns, and issues that must be resolved.
(e) Cooperating agency. A lead agency may designate a participating agency as cooperating under the cited regulations. That does not change the subsection (a)(3) designation, and an agency not designated participating cannot be designated cooperating.
(f) Other projects. At the Executive Director’s request, the Transportation Secretary* and Army Secretary must use best efforts to provide Dashboard information about projects under 23 U.S.C. § 139 or 33 U.S.C. § 2348 likely to cost over $200,000,000 and require an NEPA* environmental-impact statement. Including that information does not subject those projects to this subchapter.
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.
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.
Each notice described in subparagraph (A) shall include—
a statement of the purposes and objectives of the proposed project;
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;
a statement regarding the technical and financial ability of the project sponsor to construct the proposed project;
a statement of any Federal financing, environmental reviews, and authorizations anticipated to be required to complete the proposed project; and
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.
Any information relating to Native American natural, cultural, and historical resources submitted in a notice by a project sponsor under subparagraph (A) shall be—
kept confidential; and
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
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—
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
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.
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.
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—
has no jurisdiction or authority with respect to the proposed project; or
does not intend to exercise authority related to, or submit comments on, the proposed project.
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.
The designation described in paragraph (3) shall not—
give the participating agency authority or jurisdiction over the covered project; or
expand any jurisdiction or authority a cooperating agency may have over the proposed project.
On establishment of the lead agency, the lead agency shall assume the responsibilities of the facilitating agency under this subchapter.
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.
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.
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.
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.
The Dashboard shall include a specific and searchable entry for each covered project.
Not later than 14 days after the date on which the Executive Director adds a project to the inventory under section 4370m–1(c)(1)(A) of this title, the Executive Director shall create a specific entry on the Dashboard for the covered project.
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.
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.
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—
a comprehensive permitting timetable, as described in subsection (c)(2)(A);
the status of the compliance of each lead agency, cooperating agency, and participating agency with the permitting timetable required under item (aa);
any modifications of the permitting timetable required under item (aa), including an explanation as to why the permitting timetable was modified; and
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.
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).
Not later than 14 days after receiving an explanation described in subparagraph (B), the Executive Director shall—
make a final and conclusive determination as to whether the project is a covered project; and
if the Executive Director determines that the project is a covered project, create a specific entry on the Dashboard for the covered project.
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—
a hyperlink that directs to a website that contains, to the extent consistent with applicable law—
the notification submitted under subsection (a)(1);
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
a notice explaining how the public may obtain access to such documents;
a description of any Federal agency action taken or decision made that materially affects the status of a covered project;
any significant document that supports the action or decision described in subclause (III);
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
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;
any document described in clause (i) that is not available by hyperlink on another website; and
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.
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.
The Executive Director shall publish to the Dashboard—
the permitting timetable established under subparagraph (A) or (C) of subsection (c)(2);
the status of the compliance of each agency with the permitting timetable;
any modifications of the permitting timetable;
an explanation of each modification described in subparagraph (C); and
any memorandum of understanding established under subsection (c)(3)(B).
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.
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:
A list of, and roles and responsibilities for, all entities with environmental review or authorization responsibility for the project.
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.
A discussion of potential avoidance, minimization, and mitigation strategies, if required by applicable law and known.
Plans and a schedule for public and tribal outreach and coordination, to the extent required by applicable law.
The coordinated project plan described in subparagraph (A) may be incorporated into a memorandum of understanding.
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.
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—
the size and complexity of the covered project;
the resources available to each participating agency;
the regional or national economic significance of the project;
the sensitivity of the natural or historic resources that may be affected by the project;
the financing plan for the project; and
the extent to which similar projects in geographic proximity to the project were recently subject to environmental review or similar procedures under State law.
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).
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.
Any action taken by the Director of the Office of Management and Budget in the resolution of a dispute under clause (ii) shall—
be final and conclusive; and
not be subject to judicial review.
The facilitating or lead agency, as applicable, may modify a permitting timetable established under subparagraph (A) only if—
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);
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;
the facilitating agency or lead agency, as applicable, or the affected cooperating agency provides a written justification for the modification; and
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.
A completion date in the permitting timetable may not be modified within 30 days of the completion date.
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).
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.
The following shall not be subject to judicial review:
A determination by the Executive Director under clause (i)(III).
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.
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.
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).
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—
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;
in consultation with the facilitating or lead agency, as applicable, establish an alternative completion date; and
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.
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.
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.
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.
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—
have jurisdiction over the covered project;
are required to conduct or issue a review, analysis, opinion, or statement for the covered project; or
are required to make a determination on issuing a permit, license, or other approval or decision for the covered project.
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.
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.
The facilitating or lead agency, as applicable, shall submit to the Executive Director each memorandum of understanding described in clause (i).
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.
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—
the availability of information and tools, including pre-application toolkits, to facilitate early planning efforts;
key issues of concern to each agency and to the public; and
issues that must be addressed before an environmental review or authorization can be completed.
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).
The designation described in paragraph (1) shall not affect any designation under subsection (a)(3).
Any agency not designated as a participating agency under subsection (a)(3) shall not be designated as a cooperating agency under paragraph (1).
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 total investment of more than $200,000,000; and
an environmental impact statement* under NEPA*.
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.
Source credit: (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.)
- 2015Enacted · Pub. L. 114-94 · 129 Stat. 1747
- 2021Amended · Pub. L. 117-58 · 135 Stat. 1289
A history note hasn’t been published yet. The record shows enactment by Pub. L. 114-94 on 2015-12-04.
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