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Big Federal Push For Expediting Infrastructure Projects

30 May 2014

Law360

Large infrastructure projects — bridges and highways, utility-scale renewable energy facilities, rail and transit, pipelines and transmission lines — are the backbone of our economy. But, because of their complexity and sheer size, these projects typically face multiyear, multijurisdictional approval timelines.

Depending on a project’s footprint and potential impacts, it could require permits and reviews by multiple federal agencies, each with different responsibilities, procedures, data requirements and processing timelines. This complex web of federal approvals can be frustrating to navigate and can sometimes lead to significant schedule delays. Add in state, local and tribal consultations and permits and it’s easy to understand why our most significant projects can take many years to authorize.

Earlier this month, President Obama outlined a comprehensive plan to address these challenges and create a more predictable, transparent and streamlined federal review and permitting process for large infrastructure projects. The "Implementation Plan for the Presidential Memorandum on Modernizing Infrastructure Permitting" was developed by an interagency steering committee composed of deputy secretaries or their equivalents from 12 federal agencies and is chaired by the Office of Management and Budget, in coordination with the Council on Environmental Quality.

Building on the lessons learned from a number of interagency pilot efforts, the infrastructure plan identifies concrete steps that federal agencies will take to streamline permitting, improve transparency and reduce uncertainty for project applicants. From improving interagency coordination and synchronizing certain federal reviews, to expanding programmatic approaches for routine activities and tracking project schedules on an online dashboard, the reforms outlined in the plan target the biggest sources of inefficiency, duplication and delay.

This article provides an overview of the most significant policy changes announced in the infrastructure plan and outlines a number of steps project proponents can take to facilitate more efficient reviews.

What are the Key Reforms in the Infrastructure Plan?

The infrastructure plan lays out a goal to “modernize the federal permitting and review process for major infrastructure projects to reduce uncertainty for project applicants, reduce the aggregate time it takes to conduct reviews and make permitting decisions by half, and produce measurably better environmental and community outcomes.” Going forward, federal agencies will be taking a number of steps to achieve this goal. The key reforms include:

Coordinating Federal Agency Reviews

To ensure effective interagency coordination, the infrastructure plan includes a commitment to develop a government-wide policy for coordinating federal reviews. This would include designating a federal lead for each project and developing a single, coordinated project schedule that identifies key milestones and data needs for each step in the federal permitting process. Importantly, the new policy would outline a mechanism for elevating and resolving interagency disputes quickly and effectively.

Eliminating Inefficiencies by Synchronizing Federal Reviews

To reduce the duplication of effort and delays that can result from sequential, segmented federal reviews, federal agencies will be moving to synchronized, simultaneous reviews. The U.S. Coast Guard, the U.S. Department of Transportation and the U.S. Army Corps of Engineers are spearheading this effort. The three agencies have committed to develop a synchronized review process that will generate a single, coordinated environmental review document that meets their respective statutory and regulatory requirements. This reform alone has the potential to cut months to years from project timelines.

Improving Transparency and Accountability Through an Online Dashboard

To improve transparency and agency accountability, the infrastructure plan contemplates posting project schedules on an online platform, the Infrastructure Permitting Dashboard. To date, the dashboard has been used to highlight over 50 select major infrastructure projects, which have achieved time savings ranging from several months to several years. The Obama administration’s goal is for all major infrastructure projects to have easily accessible project schedules on the dashboard, and the President’s FY 2015 Budget proposes funding for this expanded capability.

Expanding Programmatic Approaches

To expedite the permitting of routine activities with minimal impacts for communities and the environment, agencies will identify additional regional-level or national-level programmatic permitting approaches. This would not only minimize delays for regularly occurring activities but will also free up limited agency resources to evaluate complex projects with the potential for significant environmental impacts.

Improving Project Siting and Applications Through New Tools and Guidance

To improve project planning, siting and the quality of applications, federal agencies will expand geographic information system ("GIS") tools that provide interactive maps showing available information on the locations of sensitive habitat, species of concern, wetlands and other resources. In addition, agencies will develop a nationwide inventory of historic properties and move from paper-based application requirements to electronic submissions.

Advance Mitigation Planning on a Landscape Scale

The plan includes policies to encourage upfront planning for mitigating project impacts that takes into account conservation objectives and opportunities on a landscape or watershed level. This includes expanding the consideration and use of mitigation banks to compensate for project impacts. The U.S. Department of the Interior has already taken steps in this direction by developing a department-wide strategy to facilitate landscape-scale mitigation. DOI bureaus will be revising their respective policies on mitigation over the coming months.

Ensuring Sustained Commitment and Dedicated Capacity

Successful implementation of these reforms will require sustained commitment by senior leadership, dedicated capacity, and a continuing effort to track progress and improve existing processes. To this end, the plan announces the creation of an interagency permitting improvement team responsible for implementing the reforms on a government-wide basis and ensuring continued progress over time.

Recognizing that the implementation of meaningful reforms will also require adequate agency capacity, the plan highlights a number of specific proposals in the President’s FY 2015 Budget for additional resources to facilitate permitting. This includes additional agency staff and proposals to expand agency authorities to receive funds from external entities. These additional resources are essential to ensuring that the planned reforms translate into meaningful time savings for project proponents.

What can Project Proponents do to Facilitate Efficient Reviews?

Once implemented, the reforms outlined in the infrastructure plan have the potential to reduce project timelines by months or even years. However, successful implementation across multiple regional and field offices will take time, sustained leadership commitment and resources. What’s more, reforming the federal permitting process is only part of the solution. Often, the sources of project delay are outside the federal government’s control. For example, most large infrastructure projects require additional consultations or approvals from numerous state, local and tribal entities, which often come with their own procedural inefficiencies. Public stakeholder opposition, if unaddressed, can also result in years of delay from administrative and legal challenges to agency decisions.

While many of these factors are outside a project proponent’s control, there are a number of steps that can facilitate efficient reviews and reduce the likelihood of schedule delays.

Selecting a Project Site with Minimal Impacts

Taking the time upfront to select an appropriate project location that avoids or minimizes impacts to ecological, historic or other resources can significantly reduce the overall timeline for completing necessary permits and reviews.

Consulting with Relevant Agencies Prior to Filing an Application

The speed with which government agencies will review and render a decision on any given project application depends to a large extent on the quality and adequacy of the information presented. Taking the time before submitting an application to consult with federal, state, local and tribal entities, gather relevant scientific information and document steps taken to avoid or minimize potential impacts can go a long way to a more efficient review process.

Taking an Active Role in Facilitating Interagency Coordination

Even before the policy for coordinated federal review goes into effect, project applicants can take steps to facilitate coordination not only among federal agencies but also with state and local governments. Project proponents should designate a point person who is responsible for meeting with all agencies with potential permitting or review responsibilities for the project, working with them to develop an overall project schedule with key milestones, identifying key data needs at each step of the process, identifying opportunities to eliminate duplication or synchronize separate processes and maintaining regular communication throughout the permitting and review process.

Planning for Early and Effective Engagement with Stakeholders

The importance of outreach and communication with stakeholders cannot be overstated. Being able to identify and resolve any concerns regarding the project or its potential impacts in the early stages of project planning will not only expedite permitting, it would also minimize the risk of administrative and legal challenges to agency decisions.

Informing Future Policy Improvements

The infrastructure plan highlights a number of future reform initiatives, both agency-specific and government-wide. The developers of large infrastructure projects have a unique opportunity to inform additional policy and process improvements, including by recommending:

  • Additional opportunities to synchronize specific federal reviews that currently occur sequentially;
  • Specific reforms to regulations, policies or guidance to eliminate duplication or inefficiencies in the permitting process;
  • Additional opportunities for programmatic approaches for regularly occurring activities or activities with minimal impacts;
  • Revisions to agency policies that will facilitate landscape-level mitigation planning, consistent mitigation standards and effective compensatory mitigation options.

Conclusion

The reforms outlined in the infrastructure plan reflect an unprecedented government-wide focus on improving the efficiency of infrastructure permitting. This is the first time that the executive branch has outlined a comprehensive proposal that combines agency commitment, tools and institutional capacity to implement reforms, measure progress and identify additional improvements over time.

Once implemented, these reforms have the potential to transform the federal government’s approach to permitting large infrastructure projects. While this will take both time and resources, the Obama administration has outlined strategies for sustaining this effort over time through increased agency capacity, the creation of a dedicated interagency infrastructure center and the tracking of key performance metrics. Project proponents can — and should — play an important role in this process by taking steps to both facilitate efficiencies and inform future policy reforms.

—By Andrew L. Spielman and Raya B. Treiser, Hogan Lovells LLP

Andrew Spielman is a partner in Hogan Lovells' Denver and Washington, D.C., offices. Spielman is co-head of the firm's energy and natural resources industry sector group.

Raya Treiser is an associate in Hogan Lovells' Washington, D.C., office.

Raya Treiser was the lead author for the "Implementation Plan for the Presidential Memorandum on Modernizing Infrastructure Permitting" prior to joining Hogan Lovells earlier this year. Treiser also chaired an interagency working group to coordinate the plan's development.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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