By Marc Campopiano, Andrea Hogan and Joshua Marnitz

On September 22, 2015, the White House, through the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ), issued guidance to the heads of certain federal departments and agencies[1] (the Agencies) establishing metrics for the permitting and environmental review of infrastructure projects in the United States (the Guidance). The Guidance is intended to expand the use and reframe the purpose of the publicly accessible online Federal Infrastructure Permitting Dashboard (the Dashboard). To that end, the Guidance establishes a set of metrics to track permit and review timelines for certain infrastructure projects, and sets a schedule for collecting and posting that data to the Dashboard. It then outlines an approach for capturing and reporting the environmental and community impacts resulting from the federal permitting and review process.

The infrastructure projects covered by the Guidance include those projects in the following sectors: surface transportation (including all highway, rail, and transit projects); airport capital improvement projects; ports and waterways; water resource projects; renewable energy generation; electricity transmission; storm-water infrastructure; broadband internet; and pipelines (except those subject to Federal Energy Regulatory Commission oversight). The Guidance also provides that the Agencies can include other sectors, as appropriate.

Starting October 12, 2015, the Agencies must post certain information (discussed below) to the Dashboard for any new project in the sectors listed above if the project meets one or more of the following criteria:

  • The project requires two or more permitting and environmental review actions that are of a complex nature, the project does not qualify for an abbreviated or expedited process, and the project
    • Involves two or more jurisdictions (including tribal, state, or local governmental entities)
    • Is likely to require a total project investment greater than $200 million
  • The federal National Environmental Policy Act (“NEPA”) lead agency determines that the project is likely to have significant environmental impacts and requires the preparation of an Environmental Impact Statement under NEPA.
  • The project is identified by an agency as not meeting the criteria above but likely to benefit from posting to the Dashboard.

The lead federal Agency for a project is responsible for ensuring that information pertaining to the project name, description, schedule, milestone updates, and time elapsed due to external factors (i.e., outside the control of the Agency) is posted to the Dashboard according to the timeframe outlined by the Guidance. The Guidance requires each Agency to designate and identify to OMB a Senior Accountable Official who will implement the Guidance by coordinating across Agency bureaus, modes, program offices, and programs, including programs implemented by states and other entities as a result of delegation of responsibility.

The Guidance also states that OMB and CEQ will aggregate the reported data to develop “timeliness indicators” for the federal permitting and review process for covered sectors. While OMB and CEQ do not plan to develop timeline targets for individual projects, beginning in mid-2016, OMB and CEQ, in consultation with the Agencies, plan to review the data to determine if there is a sufficient baseline to set aggregate targets and/or to identify what, if any, additional information is needed to do so.

As of June 1, 2016, Agencies will also have to report data on the environmental and community impacts resulting from the federal permit and review process for projects meeting the criteria discussed above. Specifically, the Dashboard will include an Outcome Classification System that allows federal project teams to report on whether the permitting process produced an improved outcome (i.e., a reduction in impacts) when compared to the applicant-proposed project. Data will be reported in seven resource categories: air, water, land, biological, cultural, community, and other.

OMB and CEQ believe that implementation of the Guidance and use of the Dashboard will result in a number of important benefits, including, “cutting timelines by encouraging synchronized review and early coordination of agencies’ schedules; making it easier to identify and troubleshoot roadblocks; and improving agencies’ accountability and transparency to the public.” Contemporaneous with the release of the Guidance, the US Department of Transportation, Army Corps of Engineers, US Coast Guard and four other agencies have released an update to the handbook known as the Red Book,“Synchronizing Environmental Reviews for Transportation and Other Infrastructure Projects.” Statements by various agency and administration officials indicate that both the Guidance and updates to the Red Book are intended to accelerate infrastructure projects permitting, while at the same time improving the quality and consistency of agencies’ environmental analyses.

[1] The Guidance applies to eleven federal agencies identified as members of the Steering Committee on Federal Infrastructure Permitting and Review Process Improvement in the “Implementation Plan for the Presidential Memorandum on Modernizing Infrastructure Permitting.” The eleven agencies are those that play a significant role in the permitting, review, funding, and development of infrastructure projects, and include the Advisory Council on Historic Preservation, US Department of Agriculture, US Department of the Army, US Department of Commerce, US Department of Defense, US Department of Energy, US Department of Homeland Security, US Department of Housing and Urban Development, US Department of the Interior, US Department of Transportation, and US Environmental Protection Agency.