Federal Permitting Reform and Jobs Act

II Calendar No. 499 116TH CONGRESS 2D SESSION S. 1976 [Report No. 116–241] To amend the FAST Act to improve the Federal permitting process, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 26, 2019 Mr. PORTMAN introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs JULY 29, 2020 Reported by Mr. JOHNSON, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To amend the FAST Act to improve the Federal permitting process, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Federal Permitting 4 Reform and Jobs Act’’. 5 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1976 RS SEC. 2. FEDERAL PERMITTING IMPROVEMENT. 1 (a) DEFINITIONS.— 2 (1) IN GENERAL.—Section 41001 of the FAST 3 Act (42 U.S.C. 4370m) is amended— 4 (A) in paragraph (4), by striking ‘‘means’’ 5 and all that follows through the period at the 6 end and inserting ‘‘has the meaning given the 7 term in section 1508.5 of title 40, Code of Fed- 8 eral Regulations (as in effect on the date of en- 9 actment of the Federal Permitting Reform and 10 Jobs Act).’’; 11 (B) in paragraph (5), by striking ‘‘Federal 12 Infrastructure Permitting Improvement Steer- 13 ing Council’’ and inserting ‘‘Federal Permitting 14 Improvement Steering Council’’; and 15 (C) in paragraph (6)— 16 (i) in subparagraph (A), in the matter 17 preceding clause (i), by inserting 18 ‘‘projects’’ after ‘‘infrastructure’’; and 19 (ii) by striking subparagraph (B) and 20 inserting the following: 21 ‘‘(B) TREATMENT.—Section 553 of title 5, 22 United States Code, shall not apply to a major- 23 ity vote described in subparagraph (A).’’. 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1976 RS (b) FEDERAL PERMITTING IMPROVEMENT COUN- 1 CIL.—Section 41002 of the FAST Act (42 U.S.C. 4370m– 2 1) is amended— 3 (1) in subsection (b)(2)(A)(i)— 4 (A) by striking ‘‘Each’’ and inserting the 5 following: 6 ‘‘(I) IN GENERAL.—Each’’; and 7 (B) by adding at the end the following: 8 ‘‘(II) REDESIGNATION.—If an in- 9 dividual listed in subparagraph (B) 10 designates a different member to 11 serve on the Council than the member 12 designated under subclause (I), the 13 individual shall notify the Executive 14 Director of the designation by not 15 later than 30 days after the date on 16 which the designation is made.’’; 17 (2) in subsection (c)— 18 (A) in paragraph (2)— 19 (i) in subparagraph (B)— 20 (I) in the matter preceding clause 21 (i), by striking ‘‘later than’’ and all 22 that follows through ‘‘practices for’’ 23 and inserting ‘‘less frequently than 24 annually, the Council shall issue rec- 25 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1976 RS ommendations on the best practices 1 for improving the Federal permitting 2 process for covered projects, which 3 may include’’; 4 (II) in clause (vii), by striking 5 ‘‘and’’ at the end; 6 (III) by redesignating clause 7 (viii) as clause (ix); and 8 (IV) by inserting after clause 9 (vii) the following: 10 ‘‘(viii) in coordination with the Execu- 11 tive Director, improving preliminary en- 12 gagement with project sponsors in devel- 13 oping coordinated project plans; and’’; 14 (ii) by redesignating subparagraph 15 (C) as subparagraph (D); and 16 (iii) by inserting after subparagraph 17 (B) the following: 18 ‘‘(C) NOTIFICATION.—The Executive Di- 19 rector shall notify the Committees on Homeland 20 Security and Governmental Affairs and Envi- 21 ronment and Public Works of the Senate and 22 the Committees on Energy and Commerce and 23 Transportation and Infrastructure of the House 24 of Representatives if any agency fails to reason- 25 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1976 RS ably implement the recommended best prac- 1 tices.’’; and 2 (B) in paragraph (3)(A), by inserting ‘‘, 3 including agency compliance with interim and 4 final completion dates described in coordinated 5 project plans’’ after ‘‘authorizations’’; and 6 (3) in subsection (d)— 7 (A) by striking ‘‘The Director’’ and insert- 8 ing the following: 9 ‘‘(1) IN GENERAL.—The Director’’; and 10 (B) by adding at the end the following: 11 ‘‘(2) SAVINGS PROVISION.—The designated 12 agency under paragraph (1) shall not— 13 ‘‘(A) participate in policy decisions or sub- 14 stantive management of the Council; or 15 ‘‘(B) require the Executive Director or the 16 Council to comply with agency policies in car- 17 rying out the duties of the Executive Director 18 or the Council, as applicable.’’. 19 (c) PERMITTING PROCESS IMPROVEMENT.—Section 20 41003 of the FAST Act (42 U.S.C. 4370m–2) is amend- 21 ed— 22 (1) in subsection (a)(3)(A), in the matter pre- 23 ceding clause (i), by inserting ‘‘and the Executive 24 Director’’ after ‘‘as applicable,’’; 25 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1976 RS (2) in subsection (b)(2)— 1 (A) by striking ‘‘14 days’’ each place it ap- 2 pears and inserting ‘‘14 business days’’; and 3 (B) in subparagraph (A)(ii), by inserting 4 ‘‘completed’’ before ‘‘notice’’; 5 (3) in subsection (c)— 6 (A) in paragraph (1)— 7 (i) in subparagraph (A), by inserting 8 ‘‘in coordination with the Executive Direc- 9 tor and’’ after ‘‘as applicable,’’; and 10 (ii) in subparagraph (B), by adding at 11 the end the following: 12 ‘‘(v) A checklist— 13 ‘‘(I) to help project sponsors 14 identify potential natural, cultural, 15 and historic resources in the area of 16 the project; and 17 ‘‘(II) the purposes of which are— 18 ‘‘(aa) to identify agencies 19 and organizations that can pro- 20 vide information about natural, 21 cultural, and historic resources; 22 and 23 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1976 RS ‘‘(bb) to develop the infor- 1 mation needed to determine the 2 range of alternatives. 3 ‘‘(vi) In the case of a tiered project 4 review, a description of the relationship be- 5 tween any applicable programmatic anal- 6 ysis and the planned tiered environmental 7 review.’’; and 8 (B) in paragraph (2)— 9 (i) in subparagraph (A)— 10 (I) by striking ‘‘As part of the 11 coordination project plan’’ and insert- 12 ing the following: 13 ‘‘(i) IN GENERAL.—In accordance 14 with clause (ii) and as part of the coordi- 15 nated project plan’’; and 16 (II) by adding at the end the fol- 17 lowing: 18 ‘‘(ii) GOAL.— 19 ‘‘(I) IN GENERAL.—The permit- 20 ting timetable established under 21 clause (i) shall provide for the comple- 22 tion of the permitting process within 2 23 years. 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1976 RS ‘‘(II) EXCEPTION.—If the facili- 1 tating agency or lead agency, as appli- 2 cable, determines that the permitting 3 process cannot be completed within 2 4 years, the coordinated project plan 5 under paragraph (1) shall include— 6 ‘‘(aa) the specific reasons 7 why the facilitating agency or 8 lead agency, as applicable, antici- 9 pates that the permitting process 10 will take longer than 2 years; and 11 ‘‘(bb) the specific efforts 12 that the facilitating agency or 13 lead agency, as applicable, each 14 coordinating and participating 15 agency, the project sponsor, and 16 any State in which the project is 17 located will take to reduce the 18 time needed to complete the per- 19 mitting process.’’; 20 (ii) in subparagraph (D)(i)— 21 (I) by redesignating subclauses 22 (I) through (III) as subclauses (II) 23 through (IV), respectively; 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1976 RS (II) by inserting before subclause 1 (II) (as so redesignated) the following: 2 ‘‘(I) the facilitating or lead agen- 3 cy, as applicable, consults with the 4 Executive Director regarding the po- 5 tential modification not less than 15 6 days before engaging in the consulta- 7 tion under subclause (II);’’; and 8 (III) in subclause (II) (as so re- 9 designated), by inserting ‘‘, the Exec- 10 utive Director,’’ after ‘‘participating 11 agencies’’; and 12 (iii) in subparagraph (F)— 13 (I) in clause (i)— 14 (aa) by inserting ‘‘interim 15 and final’’ before ‘‘completion 16 dates’’; and 17 (bb) by inserting ‘‘interim or 18 final’’ before ‘‘completion date’’; 19 and 20 (II) in clause (ii)— 21 (aa) in the matter preceding 22 subclause (I), by striking ‘‘a com- 23 pletion date for agency action on 24 a covered project or is at signifi- 25 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1976 RS cant risk of failing to conform 1 with’’ and inserting ‘‘an interim 2 or final completion date for agen- 3 cy action on a covered project or 4 reasonably believes the agency 5 will fail to conform with a com- 6 pletion date 30 days before’’; and 7 (bb) in subclause (I), by 8 striking ‘‘significantly risking 9 failing to conform’’ and inserting 10 ‘‘reasonably believing the agency 11 will fail to conform’’; 12 (4) in subsection (d)— 13 (A) by redesignating paragraphs (1) 14 through (3) as subparagraphs (A) through (C), 15 respectively, and indenting appropriately; and 16 (B) by striking the matter preceding sub- 17 paragraph (A) (as so redesignated) and insert- 18 ing the following: 19 ‘‘(1) IN GENERAL.—The facilitating or lead 20 agency, as applicable, shall provide an expeditious 21 process for potential or current project sponsors to 22 confer with each potential and identified cooperating 23 and participating agency involved. 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1976 RS ‘‘(2) PROVISION OF INFORMATION.—Not later 1 than 60 days after the date on which the potential 2 or current project sponsor submits a request under 3 this subsection, each agency that received such a re- 4 quest shall provide to the project sponsor informa- 5 tion concerning—’’; and 6 (5) by striking subsection (f) and inserting the 7 following: 8 ‘‘(f) FACILITATION OF ENVIRONMENTAL REVIEW 9 AND AUTHORIZATION PROCESS OF ADDITIONAL 10 PROJECTS.— 11 ‘‘(1) IN GENERAL.—In the case of a project 12 that is not a covered project, on the request of an 13 individual described in section 41002(b)(2)(B) or the 14 project sponsor, the Executive Director may work 15 with the lead agency and any cooperating or partici- 16 pating agency to facilitate the environmental review 17 and authorization process in accordance with this 18 subsection, including by— 19 ‘‘(A) mediating and resolving disputes; 20 ‘‘(B) promoting early coordination among 21 the agencies; and 22 ‘‘(C) taking such actions as may be estab- 23 lished pursuant to paragraph (2). 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 1976 RS ‘‘(2) ESTABLISHMENT OF POLICIES.—The Ex- 1 ecutive Director, in consultation with the Director of 2 the Office of Management and Budget and the Chair 3 of the Council on Environmental Quality, may estab- 4 lish policies and procedures as appropriate to carry 5 out the facilitation under paragraph (1). 6 ‘‘(3) COOPERATION REQUIRED.—If the Execu- 7 tive Director is facilitating the environmental review 8 and authorization process under paragraph (1), the 9 lead agency and any cooperating or participating 10 agency shall cooperate with the Executive Director 11 to the maximum extent practicable. 12 ‘‘(4) SAVINGS PROVISION.—Facilitation of a 13 project by the Executive Director under paragraph 14 (1) shall not subject the project to any provisions 15 under this title, other than as provided in this sub- 16 section.’’. 17 (d) COORDINATION OF REQUIRED REVIEWS.—Sec- 18 tion 41005(b) of the FAST Act (42 U.S.C. 4370m–4(b)) 19 is amended— 20 (1) by striking ‘‘(1) STATE ENVIRONMENTAL 21 DOCUMENTS; SUPPLEMENTAL DOCUMENTS.—’’; 22 (2) by redesignating subparagraphs (A) through 23 (E) as paragraphs (1) through (5), respectively, and 24 indenting appropriately; 25 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 1976 RS (3) in paragraph (1) (as so redesignated), by 1 redesignating clauses (i) and (ii) as subparagraphs 2 (A) and (B), respectively, and indenting appro- 3 priately; 4 (4) in paragraph (2) (as so redesignated), by 5 striking ‘‘subparagraph (A)’’ each place it appears 6 and inserting ‘‘paragraph (1)’’; 7 (5) in paragraph (3) (as so redesignated)— 8 (A) in the matter preceding clause (i), by 9 striking ‘‘subparagraph (A)’’ and inserting 10 ‘‘paragraph (1)’’; and 11 (B) by redesignating clauses (i) and (ii) as 12 subparagraphs (A) and (B), respectively, and 13 indenting appropriately; 14 (6) in paragraph (4) (as so redesignated)— 15 (A) in the matter preceding clause (i), by 16 striking ‘‘subparagraph (C)’’ and inserting 17 ‘‘paragraph (3)’’; and 18 (B) by redesignating clauses (i) and (ii) as 19 subparagraphs (A) and (B), respectively, and 20 indenting appropriately; and 21 (7) in paragraph (5) (as so redesignated)— 22 (A) by striking ‘‘subparagraph (A)’’ and 23 inserting ‘‘paragraph (1)’’; and 24 VerDate Sep 11 2014 23:25 Jul 29, 2020 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6401 E:\BILLS\S1976.RS S1976 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 1976 RS (B) by striking ‘‘subparagraph (C)’’ and 1 inserting ‘‘paragraph (3)’’. 2 (e) LITIGATION, JUDICIAL REVIEW, AND SAVINGS 3 PROVISION.—Section 41007 of the FAST Act (42 U.S.C. 4 4370m–6) is amended— 5 (1) in subsection (a)(1)— 6 (A) in subparagraph (A)— 7 (i) by striking ‘‘the action’’ and in- 8 serting ‘‘the claim’’; and 9 (ii) by striking ‘‘of the final record of 10 decision or approval or denial of a permit’’ 11 and inserting ‘‘of notice of final agenc [Text truncated for display. 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