S. Hrg. 115–194 

CUTTING THROUGH THE RED TAPE: OVERSIGHT 

OF FEDERAL INFRASTRUCTURE PERMITTING AND 

THE FEDERAL PERMITTING IMPROVEMENT 

STEERING COUNCIL 

HEARING 

BEFORE THE

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 7, 2017 

Available via the World Wide Web: http://www.fdsys.gov/ 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 
PERMITTING AND THE FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL 

CUTTING THROUGH THE RED TAPE: OVERSIGHT OF FEDERAL INFRASTRUCTURE 
U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

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28–027 PDF 2018

S. Hrg. 115–194 

CUTTING THROUGH THE RED TAPE: OVERSIGHT 

OF FEDERAL INFRASTRUCTURE PERMITTING AND 

THE FEDERAL PERMITTING IMPROVEMENT 

STEERING COUNCIL 

HEARING 

BEFORE THE

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 7, 2017 

Available via the World Wide Web: http://www.fdsys.gov 

Printed for the use of the 

Committee on Homeland Security and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

JOHN HOEVEN, North Dakota 

STEVE DAINES, Montana 

CLAIRE MCCASKILL, Missouri 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

CHRISTOPHER R. HIXON, Staff Director 

MARGARET E. DAUM, Minority Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

BONNI DINERSTEIN, Hearing Clerk 

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

ROB PORTMAN, Ohio Chairman 

JOHN MCCAIN, Arizona 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

THOMAS R. CARPER, Delaware 

JON TESTER, Montana 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

ANDREW DOCKHAM, Staff Director and General Counsel 

JOHN KILVINGTON, Minority Staff Director 

KATE KIELCESKI, Chief Clerk 
(III) 

C O N T E N T S 

Opening statements: Page 

Senator Portman .............................................................................................. 1 

Senator Carper ................................................................................................. 5 

Senator McCaskill ............................................................................................ 7 

Senator Tester .................................................................................................. 8 

Senator Heitkamp ............................................................................................ 9 

Prepared statements: 

Senator Portman .............................................................................................. 41 

Senator Carper ................................................................................................. 45 

WITNESSES 

THURSDAY, SEPTEMBER 7, 2017 

Marc S. Gerken, Chief Executive Officer/President, American Municipal 

Power, Inc. ............................................................................................................ 10 

Brent Booker, Secretary-Treasurer, North America’s Building Trades Union ... 12 

William L. Kovacs, Senior Vice President, Environment, Technology, and 

Regulatory Affairs, U.S. Chamber of Commerce ............................................... 14 

Scott Slesinger, Legislative Director, Natural Resources Defense Council ........ 15 

Janet Pfleeger, Acting Executive Director, Federal Permitting Improvement 

Steering Council ................................................................................................... 27 

Terry L. Turpin, Director, Office of Energy Projects, Federal Energy Regulatory Commission ............................................................................................... 29 

Robyn S. Colosimo, Assistant for Water Resources Policy, Office of the Assistant Secretary of the Army (Civil Works) ........................................................... 30 

Gary Frazer, Assistant Director, Ecological Services, U.S. Fish and Wildlife 

Service, U.S. Department of the Interior ........................................................... 31 

ALPHABETICAL LIST OF WITNESSES

Booker, Brent: 

Testimony .......................................................................................................... 12 

Prepared statement .......................................................................................... 64 

Colosimo, Robyn S.: 

Testimony .......................................................................................................... 30 

Prepared statement .......................................................................................... 124 

Frazer, Gary: 

Testimony .......................................................................................................... 31 

Prepared statement .......................................................................................... 127 

Gerken, Marc S.: 

Testimony .......................................................................................................... 10 

Prepared statement .......................................................................................... 47 

Kovacs, William L.: 

Testimony .......................................................................................................... 14 

Prepared statement .......................................................................................... 70 

Pfleeger, Janet: 

Testimony .......................................................................................................... 27 

Prepared statement .......................................................................................... 103 

Slesinger, Scott: 

Testimony .......................................................................................................... 15 

Prepared statement .......................................................................................... 94 

Turpin, Terry L.: 

Testimony .......................................................................................................... 29 

Prepared statement .......................................................................................... 114 
Page

IV 

APPENDIX 

Level of Service chart referenced by Senator Portman ........................................ 130 

Statement for the Record from Associated General Contractors of America ...... 132 

AGC’s Flowchart of Environmental Approvals for Infrastructure Projects ........ 179 

Mr. Slesinger response to Senator Carper’s question ........................................... 187 

Mr. Frazer response to Senator Portman’s question ............................................ 265 

Responses to post-hearing questions for the Record from: 

Mr. Booker ........................................................................................................ 181 

Mr. Kovacs ........................................................................................................ 182 

Mr. Slesinger ..................................................................................................... 185 

Ms. Pfleeger ...................................................................................................... 189 

Mr. Turpin ......................................................................................................... 199 

Ms. Colosimo ..................................................................................................... 203 

Mr. Frazer ......................................................................................................... 264 
(1) 

CUTTING THROUGH THE RED TAPE: 

OVERSIGHT OF FEDERAL INFRASTRUCTURE 

PERMITTING AND THE FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL 

THURSDAY, SEPTEMBER 7, 2017 

U.S. SENATE,

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Rob Portman, Chairman of the Subcommittee, presiding. 

Present: Senators Portman, Daines, Carper, Tester, Heitkamp, 

and Peters. 

Also present: Senator McCaskill. 

OPENING STATEMENT OF SENATOR PORTMAN 

Senator PORTMAN. We are going to go ahead and get started. 

Senator Carper is on his way. He had another commitment. As 

Senator Tester and I were just talking about, this is one of those 

mornings where there are five or six different competing Committee hearings and meetings on our agendas, and I appreciate 

Senator Tester being here, and I told him we want to get to his 

questions as soon as we can. 

We have a great panel here in a moment and then a second great 

panel, so we are blessed to have two really fulsome panels. I have 

talked to Senator Carper about it this morning. We are looking forward to getting this testimony because it is so important for the 

oversight that we are doing over infrastructure and permitting. 

The hearing will officially come to order. Our infrastructure, as 

all of us know, is outdated. It is not just outdated; it is also in some 

cases unsafe. In my hometown of Cincinnati, we have an issue with 

a bridge that is actually not just outdated and aging but very unsafe for motorists. It is also hurting our economy, and it is hurting 

our ability to create jobs and to raise wages. 

Reports consistently show that infrastructure in the United 

States is lagging behind other developed countries, so compared to 

other countries we are way behind. And one reason always cited is 

the time and cost to get a green light to build something. 

The World Bank ranks the United States 39th in the world for 

dealing with construction permits. And, by the way, that is down 
2 

from 26th in the world in 2008. So we are getting worse. Other 

countries are getting better. 

In its 2017 Infrastructure Report Card, the American Society of 

Civil Engineers gave the United States a ‘‘cumulative GPA’’ of 

D-plus ranging from a B for Rail to D for roads to D-minus, I think, 

for Transit. Those are not the kinds of grades you would want to 

bring home to your parents. 

So we have a problem, and it is clear we have to rebuild. We 

have to rebuild our aging infrastructure. We have to improve those 

roads and bridges, pipelines, ports, waterways, and manufacturing 

facilities. 

While underway, while these projects are being built, of course, 

they create great jobs. We appreciate the Building Trades being 

here today to talk about that. 

But also, after they are completed, improved infrastructure, of 

course, encourages economic growth and business startups, gives 

the economy an important shot in the arm. 

The President’s budget, as you may have seen, calls for a signifi- cant investment in infrastructure, $200 billion in funding that can 

be leveraged for a $1 trillion investment into highways, ports, transit, broadband, energy, and other infrastructure projects. 

Given the very serious budget problems our Nation faces—it is 

going to be a very tight budget—it is going to be tough to find that 

funding. But we have to be sure that whatever funding set aside 

for infrastructure development is used in the most efficient way 

possible. We want to stretch that dollar as far as we can. 

In order to get the most out our investment, we have to fix the 

process the Federal Government uses to approve infrastructure 

projects. 

Let me give you one example. Right now, when a project sponsor 

wants to build a new source for hydropower, that sponsor has to 

brace itself for a permitting process that can typically last 10 years. 

Capital is just not that patient. 

I first got involved in this issue about six years ago with Senator 

McCaskill because American Municipal Power (AMP), who is here 

to talk to us today, came to me to talk about their frustration with 

the hydropower plant on the Ohio River, the R.C. Byrd Power 

Plant. At that point, I think it had taken them about six years, 

and, of course, they still had not completed it. I am glad, Marc 

Gerken, that you are here today to talk about that. The Chief Executive Officer (CEO) of American Municipal Power is going to be 

talking about why it has taken so long to get permitted, what the 

impact has been, and what is involved in terms of additional costs 

for that project. 

How many of us would be willing to have that kind of lag time 

and be able to move forward with a project? It is the reason it is 

just so important. 

In 2013, Senator McCaskill—who has just joined us—and I introduced legislation called the Federal Permitting Improvement Act to 

help streamline the permitting process. In 2015, Congress enacted 

that legislation as part of Title 41 of the Fixing America’s Surface 

Transportation Act (FAST Act). Now we call it ‘‘FAST–41.’’ That bipartisan project, by the way, with the support of Senator Carper 

and Senator Tester—Senator Peters, I do not think you were here 
3 

yet, but this entire Committee voted for it—one person did not vote 

for it, one Republican. It was a 12–1 vote. She is no longer with 

the Committee. But the point is this was a bipartisan effort, and 

one reason it was bipartisan and one reason it was so popular and 

we were able to get it done is because we had great help from the 

outside. And some of those folks are here today. 

We recognize that the permitting process is really important. 

Projects should be built the right way and need to take care of the 

environment and follow the law. We know regulations are needed. 

That is not the issue here. 

But too often, permitting requirements from different agencies 

overlap each other, conflict with each other, and there is duplication. This leads to the delays that have hamstrung our ability to 

improve economic growth and job creation. 

Our focus on FAST–41 was very simple-to address these problems. The Chamber of Commerce, the Natural Resources Defense 

Council (NRDC), and the Building Trades Unions all worked with 

us, as well as others—the National Association of Manufacturers 

and others—and, these outside groups were critical to us getting 

the legislation through. 

By the way, the NRDC, the Chamber, and the Building Trades 

are all here this morning to share their perspectives. We were 

grateful for their critical support at that time, and we are grateful 

for their input and insights today. 

One problem we all identified was a lack of accountability, and 

FAST–41 created this process called ‘‘covered projects’’ that assigns 

one accountable agency to serve as the lead agency on each project. 

That helps. 

The agency gets together with all of the other relevant agencies 

to come up with a permitting timetable. The agencies have to post 

that timetable on a Permitting Dashboard so the project sponsor 

and everyone else can see what the timelines look like. 

If that agency misses a deadline, it has to explain why. We believe that more transparency leads to greater accountability, and 

that is why that is included. 

FAST–41 also created a Council called the ‘‘Federal Permitting 

Improvement Steering Council (FPISC)’’ that sits at the Office of 

Management and Budget (OMB) to oversee the permitting process 

and helps resolve conflicts between the agencies. 

FAST–41 was designed to leverage that accountability you get 

from all of this—the transparency, the Council, the lead agency— 

to increase efficiency in the permitting process. 

As some of you know, I have expressed concern about implementation of FAST–41, as has Senator McCaskill and others. I would 

like to touch quickly on three of these we are going to address 

today. 

First, of course, is the Permitting Council itself. Although it has 

been making progress recently and I commend them for that, I am 

concerned about how long it has taken to get the structure off the 

ground and get this in place. 

This goes back to 2015, and just now really are we getting going. 

The Obama Administration failed to appoint an Executive Director 

for the first six months that the Council existed. 
4 

1The chart referenced by Senator Portman appears in the Appendix on page 130. 

In January, President Obama’s Executive Director stepped down 

during the transition to a new Administration, understandably, 

and Janet Pfleeger, who has been serving admirably as Acting Executive Director and who we will hear from today, stepped in to fill 

the gap. But we still do not have a permanent Executive Director, 

and we need one. 

We have sent suggestions of people who the Administration 

should consider for the role, both from the public sector and the 

private sector, qualified people. 

For the Council to be truly effective and fulfill its mandate, we 

need a permanent Executive Director in place now, and I know 

Janet agrees with that. 

Second, the Council needs sufficient funding. It is currently fund- ed at $4.5 million. The President’s budget requested $10 million for 

its operations, which the Council has indicated to us is the minimum amount needed to do the job that Congress has given them. 

The minimum amount. The House budget proposes funding at only 

$1 million. Again, $10 million being the minimum. 

Senate appropriators, in our view, must fully fund the Council 

and its efforts for it to function the way Congress intended. 

Without objection, I want to enter into the record a level of service chart from the Council1 that indicates how much money they 

would need to perform the services that have been authorized by 

our legislation. 

I want to see the Council succeed in its mission to streamline 

permits and be able to expand to improve the process for more 

projects. It needs sufficient funding to be able to accomplish those 

goals. 

Finally, third, the agencies that sit on the Council need to be 

fully bought into the process and cooperate with the Council’s 

goals. 

I appreciated the opportunity address the Council at its very first 

meeting under this Administration. I was glad to see broad participation at that meeting, but I conveyed the message there and I will 

convey it now: Agencies on the Council need to be fully engaged for 

this process to work. They need to be fully engaged in terms of providing the input for the Dashboard, and we will talk a little more 

about that. I know, Bill, you have some information on that. 

The Obama Administration released guidance on its way out the 

door that said independent agencies like the Federal Energy Regulatory Commission (FERC) and the Nuclear Regulatory Commission (NRC) do not have to fully comply with FAST–41. 

That is not what the law says. Independent agencies are expected to fully comply with this law. 

Bill Kovacs from the Chamber has provided in his written testimony a useful chart, I think, that examines whether agencies have 

met their statutory requirements or not. 

For some agencies, including the NRC and the Housing and 

Urban Development (HUD), the Department of Agriculture 

(USDA), and Interior departments, the Chamber assesses that 

their compliance with their statutory obligations to be ‘‘minimal at 

best.’’ So we have to do better. 
5 

I am eager to hear about that and hear what the agencies have 

to say in our second panel about participation. 

The goal of this hearing is to determine how we can stretch that 

Federal dollar to get the most bang for the buck, how we can rebuild our aging infrastructure and do it more effectively and more 

efficiently. 

If we do so, we are going to give the economy an important boost. 

We are going to create better jobs. We are going to create higher 

wages. That is all of our goals. 

I am looking forward to hearing from the witnesses today and 

how they think the FAST–41 process is going and what we can do 

to help achieve those goals. 

With that, I would like to give the opportunity to my Ranking 

Member, Senator Carper, who I spoke about earlier. I said, Senator 

Carper, that we all have five or six things going on right now, and 

you were going to be a couple of minutes late. I really appreciate 

his support of FAST–41 over the years and his willingness to work 

with me on a good hearing today. 

Also, if it is all right, we would like to give other Members an 

opportunity to speak, starting with Senator McCaskill as the lead 

sponsor, if they would like to give a brief opening statement. Then 

on my questions, once we hear from the panelists, I am going to 

defer my questions until the end so that those who came early, particularly Senator Tester, who was the first here, have a chance to 

ask their questions. Senator Carper. 

OPENING STATEMENT OF SENATOR CARPER 

Senator CARPER. Thank you. Thank you so much, Mr. Chairman. 

Our thanks to you and especially to Senator McCaskill for the leadership that both of you have shown on what I think is an important issue and what I believe we all believe is an important issue. 

One of the many things that I think we agree on is the need to 

invest in our Nation’s infrastructure and put more people to work 

on projects that will help our economy continue to grow, for example, by building and rebuilding roads, highways, and bridges, but 

also by addressing the need to invest in our railroads, our airports, 

our ports, and broadband deployment across especially rural parts 

of our Nation. And water and wastewater, oftentimes we shortchange water and wastewater. One of the key ingredients in job 

creation and job preservation is to make sure that we have water, 

clean water, available and cost-efficient ways of dealing with our 

wastewater. 

But today’s hearing will focus on the work that occurs before we 

put shovels in the ground to get a project started. 

As a long-time member—and now the Ranking Member—of the 

Environment and Public Works (EPW) Committee, I have thought 

a lot about how we can build infrastructure projects, build them 

smarter, and build them more cost effectively. I have also thought 

a lot about how well the rules and permitting processes we have 

in place work and how they sometimes do not work as well as they 

could and should. 

There are times when coordination between the agencies responsible for vetting a project is not done well and projects are delayed 

without good reason. So I have supported reasonable changes de-
6 

signed to improve the permitting process and done so in both of the 

last two transportation infrastructure laws we have adopted, as 

well as the last two Water Resources Development Act laws. 

One of my top priorities at EPW is to ensure that these initiatives are implemented fully and effectively while ensuring that we 

do not cause needless delays in the ultimate implementation of the 

measures that may have already been adopted. 

A March 2017 report by the U.S. Department of Transportation’s 

Office (DOT) of Inspector General (IG) provides us a cautionary 

tale about enacting new streamlining measures before the old ones 

are given a chance to work. That report found that some of what 

we did in the FAST Act—our most recent transportation law—may 

have actually delayed the implementation of what we did to speed 

projects along just a few years ago with our 2012 legislation. 

In addition, it has become clear through our work at EPW that 

there are a number of permitting changes included in the last two 

versions of the Water Resources Development Act that have not 

even begun to be implemented by the U.S. Army Corps of Engineers (USACE). 

It is critical that the provisions we enact in this area be fully implemented so we can understand the impact that they will have before we look to do a whole lot more. To be able to do that, we need 

effective oversight like we are doing today. This is important, and 

our panels’ presence here today to testify before us is hugely important. 

That brings me to the main topic we will be discussing at this 

hearing: the provisions that our Chairman and Ranking Member 

McCaskill were able to include in the FAST Act to better coordinate agency permitting activities and improve transparency for certain major infrastructure projects. 

There is clear value in the reforms set in motion by the PortmanMcCaskill law and the Federal Permitting Improvement Steering 

Council that it created, and I look forward to hearing more details 

today about how all of it is working. I am especially interested in 

learning about how the transparency the new law offers regarding 

agency permitting timelines can speed things along and about how 

the sharing and adoption of best practices for project review can 

help agencies work smarter. 

That said, it has become clear to me in examining the work that 

our Chairman and Ranking Member have done that strong and effective senior leadership at the Council and at the agencies responsible for a given project is key. It is important then that the President appoint a skilled and capable permanent Executive Director 

for the Council who is equipped with the authority necessary to 

push projects through to completion. 

Before we hear from our witnesses, Mr. Chairman, I just want 

to briefly make a couple points and then close. 

First, it is important to note that while we all want permitting 

decisions to occur quickly—God knows I do—the rules and processes we have in place are not always just ‘‘red tape.’’ They are intended to help agencies make good decisions that protect public 

health and natural resources. They also ensure that State, local, 

and tribal stakeholders have a say. If this work is well coordinated, 

it can improve outcomes, reduce costs, and identify potential con-
7 

flicts early on. A strong Federal Permitting Improvement Steering 

Council can help make sure that happens more often. 

Second, while environmental reviews are often blamed for project 

delays—and in some cases, they are to blame—studies have also 

shown that projects are usually held up for other reasons—lack of 

capital funding for large projects being chief among them. 

Similarly, limited resources at permitting agencies like the Environmental Protection Agency (EPA) and the U.S. Fish and Wildlife 

Service (FWS) can diminish their ability to engage early and complete their work on time. So we should work to ensure that all of 

the agencies involved in getting infrastructure projects off the 

ground, including the Federal Permitting Improvement Steering 

Council, have the resources they need to do their jobs well. 

Lastly, in closing, Mr. Chairman, I want to congratulate you and 

Senator McCaskill for the bipartisan work that went into the permitting reforms we are going to be discussing today. I know how 

difficult it can be to get consensus on these issues. The two of you 

deserve our thanks for authoring legislation that promises to create 

jobs while building and rebuilding our infrastructure more quickly, 

all with the support of the business community, labor unions, and 

the Obama Administration. 

So my thanks for holding the hearing. We look forward to hearing from all our witnesses. Thanks so much. 

Senator PORTMAN. Thank you, Senator Carper. I appreciate that. 

Senator McCaskill, do you have an opening statement you would 

like to make? 

OPENING STATEMENT OF SENATOR MCCASKILL 

Senator MCCASKILL. Just briefly, Mr. Chairman. First of all, 

thank you for having this hearing. This hearing is a symptom of 

a disease that runs rampant, and that is, we pass legislation to correct a problem, and we check back two years later, and the legislation has not had the impact that we had hoped it would have. You 

have outlined I think very thoroughly the issues that we have, and 

some of it is delay. Some of it is calcified processes that sometimes 

changing those processes require more than a bill being signed by 

the President. Sometimes it takes continued pressure, continued 

oversight, continued aggressive efforts at looking at what is happening, why is it not happening, and what can we do to really 

make this law have the impact that it has the potential to make. 

We worked hard getting this across the finish line. We did what 

you are supposed to do in the Senate. We had lots of folks upset 

about various things, and we kept working it and working it and 

working it and finding agreement and finding agreement until we 

got a bill that had broad support in the U.S. Senate on a bipartisan 

basis. 

So what a shame it would be, and I am glad that we have 

cleared up the confusion that the President’s first Executive Order 

(EO) created. That was not a good moment where all of a sudden 

we had an Executive Order being issued that clearly did not even 

envision or understand the current law. So now we have a corrected Executive Order which I think puts us in a much better 

place. But I want to echo your comments about how important it 

is that we get a permanent Director of the Permitting Council. 
8 

And then I want to say to all the witnesses that are here, I hope 

I will have a chance to question. As you know, Senator Portman 

and Senator Carper, we have an important Finance Committee 

hearing this morning on the Children’s Insurance Program that I 

need to also attend. But when I read about AMP and the problems 

they have had with trying to get Fish and Wildlife and FERC on 

the biological opinion and then to have the Army Corps basically 

take their football and go home and say that is not going to work, 

excuse me, that is not what this law says. This law says the Permitting Council at that moment steps in and says, ‘‘No, you are not 

going to take your football and go home. We are not going to make 

them go through this again.’’ This is why we passed this law. 

So what I really want to hear about are—even if they are anecdotal—these examples of where the law is not working the way it 

is supposed to work and what we need to do, what 2-by-4 we need 

to pick up to exert pressure against the Army Corps or against any 

of the others, whether it is FERC or whether it is Fish and Wildlife, National Park Services, whatever it is, wherever we have to 

exert that pressure, I think it is really important. I know that Senator Portman is committed to that, and, frankly, I enjoy doing that. 

So give me a chance to go to work and try to make this bill what 

we had hoped it would be, and I look forward to learning more 

about the problems that everyone is facing and the fits and starts 

we have had in getting this in place. But I hope two years from 

now, for a variety of reasons, I hope two years from now I will be 

back here with you, Senator Portman, to have a hearing talking 

about the successes we have had with FAST–41, because I think 

those successes are within reach now, and thank you very much. 

Senator PORTMAN. Thank you. It is good to have a partner who 

likes to pick up that 2-by-4 on oversight. Not everybody does. I do 

think this hearing alone has caused more activity and I think we 

are heading on the right track. Senator Tester. 

OPENING STATEMENT OF SENATOR TESTER 

Senator TESTER. Yes, thank you, Mr. Chairman. I want to thank 

you and the Ranking Member for holding this hearing. I can do the 

math, and we have got four people on the next panel, so I am not 

going to be able to ask questions. I will try to get back. But I do 

hope that some of you, if not all of you, address this issue. 

Look, we have mines that, whether they get permitted or not, 

they are just not getting any answers in Montana. We have tree 

cuts that regularly go to court and regularly lose. Both those things 

are disturbing. But if you take a look at the lack of manpower in 

these agencies and the fact that the Forest Service, for example, 

spends half their money on fighting fires—this year, I bet it is 

north of two-thirds fighting fires—you have to ask yourself: Do we 

have the manpower to be able to permit these projects? Are we 

funding these agencies? And is the money going to what it is for 

and, that is, working on whether it is permitting a mine, making 

sure the mitigation is there for water and wildlife, or a tree cut, 

same kind of thing, restoration that is involved in it? Or are we 

putting the agencies in a situation where we are all frustrated with 

the permitting process, but they simply do not have the resources 
9 

that they need to be able to do the permitting process in a timely 

manner that is done right? 

And so I hope you address that. I think we are all frustrated on 

this side of the rostrum about how long it takes, because we have 

a project in each one of our States that takes far too long and 

should have been permitted not years but maybe decades ago. And 

so hopefully we will get to that, and I think in the end, your testimony today is going to be critically important in allowing us to 

move forward, so thank you. 

Senator PORTMAN. Senator Peters, do you have an opening statement? We will get to the witnesses otherwise. Senator Heitkamp. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Just very quickly, I wanted to make sure 

that I stopped in to impress upon everyone here that we are serious about this process. As Senator McCaskill has outlined, this is 

a bipartisan fix that does not seem to be working very well. Both 

Senator Tester and I have a very important hearing in Banking on 

North Korean sanctions; otherwise, we would be here permanently 

asking these questions. But we trust our colleagues to do a great 

job and to work with us in following up on what needs to be 

changed, if anything, in the legislation and how we should continue 

our commitment for streamlining this process, because not only is 

it time, it is money. Time is money. And as a result, money is 

short. We have infrastructure projects we want to do. We want to 

make sure when we do an infrastructure bill, which I hope we will, 

that we have this problem taken care of. 

Thank you, Mr. Chairman, for holding this hearing. 

Senator PORTMAN. Thank you. Let us go ahead and call the witnesses. We are going to call our first panel now. 

Marc Gerken is the chief executive officer of American Municipal 

Power, which is the sponsor of the R.C. Byrd Hydropower Project 

on the Ohio River I talked about. Please come forward and have 

a seat. 

Brent Booker is secretary-treasurer of North America’s Building 

Trades Unions (NABTU). I appreciate your being here, Brent. 

Bill Kovacs is senior vice president for Environment, Technology, 

and Regulatory Affairs at the United States Chamber of Commerce. 

Scott Slesinger is legislative director of the Natural Resources 

Defense Council. 

I appreciate all of you being here today. As I said earlier, it is 

a distinguished panel that was very helpful to us in getting this 

legislation passed and shares with us this passion to be sure it is 

properly implemented. 

It is the custom of this Subcommittee to swear in all the witnesses, so at this time, I would ask you, now that you just have 

gotten seated, to please stand and raise your right hand. Answer 

in the affirmative. Do you swear that the testimony you will give 

before this Subcommittee will be the truth, the whole truth, and 

nothing but the truth, so help you, God? 

Mr. GERKEN. I do. 

Mr. BOOKER. I do. 

Mr. KOVACS. I do. 
10 

1The prepared statement of Mr. Gerken appears in the Appendix on page 47. 

Mr. SLESINGER. I do. 

Senator PORTMAN. Thank you. Please be seated. Let the record 

reflect the witnesses answered in the affirmative. 

We are going to use a timing system today, gentlemen, so all of 

your written testimony will be printed in the record in its entirety, 

but we are going to ask you to limit your oral testimony to five 

minutes, and we are going to enforce that. 

Mr. Gerken, we would like to hear from you first. 

TESTIMONY OF MARC S. GERKEN,1 CHIEF EXECUTIVE 

OFFICER/PRESIDENT, AMERICAN MUNICIPAL POWER, INC. 

Mr. GERKEN. Thank you. Good morning, Chairman Portman, 

Ranking Member Carper, and distinguished Members of the Subcommittee. My name is Marc Gerken. I am CEO of American Municipal Power, headquartered in Columbus, Ohio. I am pleased to 

have this opportunity to testify about AMP’s regulatory experiences 

developing new hydro infrastructure this morning and be a sponsor 

of a project in the initial Federal Permitting Improvement Infrastructure Steering Committee inventory. I commend the Subcommittee for holding this hearing and for looking for needed ways 

to cut red tape in the licensing and permitting process. 

AMP is a nonprofit wholesale power supplier and service provider for 135 municipal member systems across nine States, including the home States of Senators Portman, Carper, Paul, and Peters. AMP is one of the largest public power joint action agencies 

in the country, and we have a diverse portfolio, including a mix of 

fossil fuel as well as renewable resources. 

We have a unique perspective on infrastructure development and 

regulatory processes as we are in the process of completing the 

largest development of new run-of-the-river hydropower projects in 

the United States today. Our four new projects are located at existing Army Corps of Engineers dams along the Ohio River in the 

States of Kentucky and West Virginia. Our projects represent more 

than 300 megawatts of emission-free, long-life generation, and a 

$2.6 billion investment. 

Hydropower projects are expensive to build and typically begin 

above market as resources; however, their operational, economic, 

and environmental attributes make hydropower an excellent investment long term. 

There is also significant untapped potential of new hydropower, 

and that is detailed in the Department of Energy (DOE’s) recent 

hydro vision report published last year. 

The siting and permitting processes of any new generation are 

not for the faint of heart. The licensing and permitting processes 

for hydropower are especially arduous and typically take more than 

a decade, considerably longer than most other electric generation. 

While FERC is the lead agency, approvals for hydropower development must come from a variety of Federal and State agencies 

and require separate permitting by the Army Corps and State resource agencies. 

AMP just received the FERC license for the potential fifth 

project, which would be located at the R.C. Byrd Gallia Locks and 
11 

Dam in the State Ohio. We began that licensing process in 2007. 

The final license was issued a decade later on August 30, 2017, 

largely due to delays associated with issues raised by the Corps of 

Engineers. 

The R.C. Byrd Project has been part of the initial Federal Permitting Improvement Steering Council inventory. To date, our experience with the permitting Dashboard and the FAST–41 processes have shown improvements in timeliness, predictability, and 

transparency. However, it is critical that these improvements continue as the R.C. Byrd Project transitions from licensing to permitting. 

In Appendix A to my written testimony is the detailed timeline 

of the R.C. Byrd Project licensing process, which illustrates the 

stop, start, and repeat nature of the agency interactions. 

From an AMP perspective, securing financing has not been a 

challenge to our infrastructure development efforts. Regulatory uncertainty and the associated time delays have been. Securing the 

FERC license for our hydropower projects has been a milestone 

step but, unfortunately, has only signaled the start of the new process negotiating many of the same elements debated during the licensing process with the Corps of Engineers in the 408 and 404 

process. This needs to change. 

As a developer, you must be passionate about the benefits that 

will result from your projects and have supportive participants and 

flexible financing. One of the key challenges is to keep the costs 

down and stay on schedule. As said earlier, the old adage is, ‘‘Time 

is money.’’ The regulatory process plays a critical role in the project 

schedule and ultimately can drive whether or not the project comes 

to fruition. 

So much uncertainty exists in both the outcomes and timeliness 

in the Corps permitting process, it is extremely difficult for a developer to build construction schedules and place equipment orders 

with any confidence. The gauntlet that the developer must endure 

and the cost of delays and disincentives to hydropower investments 

are huge. 

For instance, we estimate that the delays associated with the 

Corps’ permitting in our four projects ended up costing AMP and 

our members approximately 50 basis points on our financing of 

$1.4 billion while waiting for the Corps 408 and 404 process. The 

added transparency of the FPISC process and having an impartial 

referee to help identify impediments in the Federal regulatory process will be extremely beneficial. The FPISC process and Permitting 

Dashboards are solid concepts that should be more transparent to 

the developers and agencies, and it will be an important process 

that matures and transitions from the initial investment inventory 

to the retained scope. 

With that, Mr. Chairman, I look forward to questions. 

Senator PORTMAN. Thank you. You came in at five seconds over 

your time. I like that. Mr. Booker. 
12 

1The prepared statement of Mr. Booker appears in the Appendix on page 64. 

TESTIMONY OF BRENT BOOKER,1 SECRETARY-TREASURER, 

NORTH AMERICA’S BUILDING TRADES UNIONS 

Mr. BOOKER. Good morning, Chairman Portman, Ranking Member Carper, Senator McCaskill. My name is Brent Booker, secretary-treasurer of North America’s Building Trades Unions, and 

on behalf of the nearly three million construction workers in North 

America that I am proud to represent, I would like to thank you 

for allowing me to testify before this Subcommittee on an issue 

that directly impacts building and construction trades men and 

women across America, which is permitting reform. 

America’s labor leaders and businesses agree: The permitting 

process for major U.S. infrastructure projects must be modernized 

to make it more efficient, more accountable, and more transparent. 

These projects employ hundreds of thousands of building trades 

members, and the sooner projects can break ground, the sooner our 

members can get to work applying their crafts and providing for 

their families. 

Chairman Portman, your work and leadership along with Senator McCaskill on the Federal Permitting Improvement Act demonstrated a steadfast commitment to cutting red tape in order to 

get much needed infrastructure projects moving forward. NABTU, 

and, in fact, the entire building trades community, is extremely 

grateful that these efforts resulted in Title 41 of the FAST Act, 

which will greatly streamline the Federal permitting process, leading to more job opportunities for construction workers across this 

country. 

We are pleased that permitting reform is an issue on which there 

is a bipartisan recognition that steps must be taken to address the 

inequities in the process. In fact, in ‘‘Road Map to Renewal: Invest 

in Our Future, Build on Our Strengths, Play to Win,’’ President 

Obama’s Jobs Council found that an unnecessarily complex Federal 

permitting process is a major barrier to capital investment and job 

creation. They also found that other countries expedite the approval of large projects better than the United States. 

The general problem with the permitting process is this: Project 

owners, whether it is the public or private sector, oftentimes find 

the Federal permitting process to be overly burdensome, slow, and 

inconsistent. Gaining approval for a new bridge or factory typically 

involves negotiating a complex maze of review by multiple Federal 

agencies with overlapping jurisdictions and no real deadlines. 

Often, no single Federal entity is responsible for managing the 

process. Even after a project has cleared extensive review and a 

permit is granted, lawsuits and judicial intervention can stymie effective approval for years—or, worse, halt a half-completed construction project in its tracks. 

By some estimates, a 6-year delay in starting construction on 

public works, including the effects of unnecessary pollution and 

prolonged inefficiencies, costs this Nation over $3.7 trillion. 

The reforms instituted in FAST–41 are designed to take steps to 

rectify this problem. We believe the creation of the Federal Permitting Improvement Council is a long overdue step in the right direction. We believe the new procedures set forth in FAST–41 to stand-
13 

ardize interagency coordination and consultation will ultimately 

lead us toward the better coordination among agencies and deadline setting that has been lacking in the permitting process and 

frustrating construction owners, contractors, and workers for years. 

As an organization that relies upon standards, we welcome this. 

Furthermore, by tightening litigation timeframes surrounding 

permitting decisions, major infrastructure projects will no longer be 

subject to the seemingly never-ending cycle of lawsuits project opponents advocate. 

On this point I want to be very clear: North America’s Building 

Trades Unions support responsible regulations that protect the environment, public health, and worker safety. We believe they are 

critical to responsible infrastructure development that lasts for decades and allows for future generations to use these invaluable assets. What we are opposed to is the constant stream of endless lawsuits that project opponents rely upon because they cannot defeat 

a project on the merits of the project itself. When projects are tied 

up in the courts, our members are not working, they are not putting food on the table, and they are not providing for their families. 

The enhanced transparency resulting from the Federal Infrastructure Permitting Dashboard is also a welcome development in 

the construction industry. We believe displaying project timelines 

and providing important and detailed information on each project 

on such a public forum will bring about increased accountability to 

government agencies involved in the permitting process and will 

allow for the general public to access information that will inform 

their understanding and appreciation of the impact of these 

projects on their communities. 

One such project currently listed on the Dashboard that will employ building trades members is the Atlantic Coast Pipeline, a vitally important infrastructure project that will ensure the economic 

vitality, environmental health, and energy security of the Mid-Atlantic region. 

FERC is the lead Federal agency responsible for overseeing the 

environmental review and approval process for this project. In coordination with more than a dozen other local, State, and Federal 

agencies, FERC will conduct a thorough and exhaustive review to 

evaluate all potential environmental, cultural, socioeconomic, and 

other impacts of the project. Throughout the process, FERC and 

other agencies will carefully analyze all the potential impacts to 

the land, air, and water quality, wildlife and other resources to ensure the project has adopted all the necessary measures to protect 

the environment, landowners, and public safety. 

The environmental review process provides numerous opportunities for the public to provide meaningful input to the agencies, including more than two dozen public meetings and multiple public 

comment periods. Over the last two years, the FERC has received 

more than 35,000 public comments from landowners, residents, 

businesses, and organizations in communities across the region. 

The Atlantic Coast Pipeline will be an energy provider, job creator, and economic game changer for the region. This underground 

natural gas transmission pipeline will transport domestically produced, clean-burning natural gas from West Virginia to communities in Virginia and North Carolina that lack the infrastructure 
14 

1The prepared statement of Mr. Kovacs appears in the Appendix on page 70. 

needed. Along the way, the pipeline will help the region lower 

emissions, improve air quality, grow local economies, and create 

thousands of new jobs in manufacturing and other industries. 

Projects such as this one are exactly the type of major infrastructure permitting reform moves forward. 

With that, I thank you for the opportunity to be here and look 

forward to any questions you may have. 

Senator PORTMAN. Thank you, Mr. Booker. I really appreciate 

your being here. Bill Kovacs. 

TESTIMONY OF WILLIAM L. KOVACS,1 SENIOR VICE PRESIDENT, ENVIRONMENT, TECHNOLOGY, AND REGULATORY AFFAIRS, U.S. CHAMBER OF COMMERCE 

Mr. KOVACS. Mr. Chairman, Ranking Member Carper, and Members of the Committee, thank you for inviting me to testify on the 

implementation of FAST–41. 

FAST–41 creates a new governance structure to streamline the 

Federal environmental review process for infrastructure projects 

that historically have had a very poor track record on meeting time 

limits and very little transparency. 

The FAST–41 process includes clear procedures for decisionmaking, developing project schedules, coordinating agency reviews, 

mechanisms for State participation, a dashboard to ensure transparency, and it reduces the statute of limitations for legal challenges to final agency action from six years to two years. 

The passage of FAST–41 was a bipartisan achievement, led by 

Senators Portman and McCaskill, and its implementation continues to be bipartisan. Upon enactment, President Obama transferred funds from the General Services Administration (GSA) to 

provide operational support for the new law, appointed an Executive Director, and secured staff for the program. Between the enactment of FAST–41 on December 14, 2015, and today, the Federal 

Permitting Council has established an initial inventory of 35 covered projects on its Dashboard, developed guidance on how to carry 

out the program responsibilities, released recommended performance schedules, prepared for Congress its Fiscal Year (FY) 2016 annual report, and it is currently developing regulations to implement 

the project fee provisions of the statute. 

Let me stop here for a second. This is very important to what 

Senator Tester was saying, because the fee provisions are essential 

to the operation. There are three ways money can come in: transfers from GSA and other agencies, congressional appropriations, 

and the fee structure. And I know some have asked, Well, why a 

fee structure? Within the Federal Government, there are $64 billion a year in fees that are collected. So it is not something that 

is out of the ordinary. It is actually very common, and I believe 

FERC is completely funded by fees. 

Continuing this bipartisan support for FAST–41, President Trump’s budget sought $10 million for the program. Unfortunately, 

only $1 million is currently in the House Subcommittee appropriations bill. 
15 

1The prepared statement of Mr Slesinger appears in the Appendix on page 94. 

More important, however, President Trump’s August 24th Executive Order 13807 concerning Federal permitting clearly supports 

the FAST–41 process and extends many of its expedited procedures 

to non-covered procedures, which is going to be essential, especially 

as you have a lot of projects that do not hit the $200 million 

threshold. The Executive Order also directs GSA to provide organizational support to the Council, including budget support. 

While permit streamlining has gotten off to what I think is a 

solid start, there are a few barriers that need to be mentioned. 

Again, I will reiterate the position of the Executive Director is vacant. It should be filled immediately, and the reason is that is the 

person that decides what are the covered projects, selects the lead 

agency, manages the dashboard, and mediates initial disputes. 

Two, many stakeholders are just simply unaware of its existence. 

I know a lot of our members just are not aware of it, even though 

we have had four meetings with members and had the Council 

there. 

Moreover, the lack of knowledge is causing some in Congress to 

insert permanent streamlining provisions in other legislative vehicles which, if enacted, would create an inconsistent permitting 

process. 

Four, Congress should appropriate funding for the Council at the 

President’s request of $10 million. 

And, finally, during the 2015 negotiations over the provisions of 

FAST, the House attached a seven year sunset provision on the 

FAST–41, and I believe that should be repealed. 

As Congress and the President propose ways to improve America’s infrastructure, we should recognize that FAST–41 is a valuable tool. It provides to the project sponsors the regulatory certainty that is needed to make the kind of substantial investments 

that they are going to make. 

With that, I am going to turn back 58 seconds of time, and everyone is going to be on time. Thank you very much, and I look forward to answering your questions. 

Senator PORTMAN. God bless you, Bill. Fifty seconds, actually. 

[Laughter.] Mr. Slesinger. 

TESTIMONY OF SCOTT SLESINGER,1 LEGISLATIVE DIRECTOR, 

NATURAL RESOURCES DEFENSE COUNCIL 

Mr. SLESINGER. Thank you for the opportunity to testify today. 

My name is Scott Slesinger, and I am the legislative director of the 

Natural Resources Defense Council. I appreciate the opportunity to 

testify and hope that my remarks will assist the Subcommittee as 

it considers the important issues raised by the implementation of 

Title 41 of the FAST Act. 

Over several years, NRDC worked cooperatively with the U.S. 

Chamber, the Administration, Senators Portman and McCaskill, 

and the HSGAC staff to work on a compromise on what became 

FAST–41. Although we opposed many provisions, we appreciate the 

compromises that were worked out to improve the system and to 

be more efficient and lead to better environmental outcomes. 
16 

One reform that the Chamber and NRDC both agreed on from 

the beginning, which has already been mentioned, was the need for 

more funding and more staff to do the permitting and environmental reviews. As I mentioned in my written statement, the loss 

of agency expertise and the lack of support for the National Environmental Policy Act (NEPA) within agencies and permitting staffs 

is responsible for many of the problems in implementing NEPA. In 

our eyes, the key reform in the legislation is the authority to use 

non-appropriated dollars to augment agency funds to complete the 

reviews necessary. We urge the permitting board to quickly implement a system to collect fees from project sponsors to address these 

bottlenecks by allocating those funds to agencies whose regulatory 

budgets have been decimated. 

Additionally, we have all heard the President talk about launching a new major infrastructure program. For this to succeed, the 

permitting board probably needs close to $30 million to get up and 

running and to provide those monies for those agencies before the 

fee kicks in. The House Committee’s token appropriation to the 

board of $1 million is barely enough to carry out its statutory duties in hosting the dashboard’s tracking of projects. 

The permitting board needs strong leadership to carry out its 

statutory mandate, as I think everyone has mentioned. We applaud 

Senator Portman and Senator McCaskill’s letter urging the President to quickly appoint an Executive Director. This law gives the 

Executive Director significant authority. The person selected must 

have the political skills to bring the siloed interests within the Federal family together—not just to make a faster system, but one 

where the environmental outcomes are better. Leaving in place an 

acting executive who is not a political appointee despite her skill 

undercuts the board’s ability to get significant cooperation from department and agency leaders. 

Despite the enactment of this, I think, far-reaching legislation in 

2015, we are very concerned with the number of bills in both 

Houses of Congress that would further amend the NEPA process 

without regard for their impact on process changes already made 

in FAST–41. If these bills became law, instead of making things 

simpler, they would create new conflicts, sow confusion, and delay 

project reviews, all of which will unfairly be blamed on NEPA, even 

though the real culprit is Congress passing contradictory legislation. 

Those that reached the House floor to establish a different permitting and NEPA processes for hydroelectric power projects, water 

supply projects, natural gas pipelines, international pipelines, fisheries management, and several others, all inconsistent with each 

other. The same for the Senate energy bill. 

President Trump’s first Infrastructure Permitting Executive 

Order also contradicted authorities and responsibilities already in 

FAST–41, to the consternation of project sponsors that were already participating in the permitting board’s existing processes. 

The President’s revised EO of August 15th ameliorated most of 

those inconsistencies; however, it also gave a green light to wasteful Federal construction in areas susceptible to flooding by revoking 

an Executive Order that previously updated flood protection standards. As Harvey will show, revoking these standards will ensure 
17 

that billions of dollars are wasted rebuilding vulnerable public facilities that could have been built more safely or in a safer location. 

I cannot conclude without noting that the emphasis on streamlining seems to be a diversionary tactic from the real problem of 

our failing infrastructure. Countries all over the world, including 

those with better infrastructures than our own, have adopted statutes based on our NEPA statute; bullet trains, modern subways, 

and efficient airports around the world have been built subject to 

NEPA-like requirements. What these countries have that the 

United States currently lacks is a national commitment to adequately funding infrastructure to compete in the 21st Century. Recent studies of the Department of Treasury and Congressional Research Service (CRS) show that funding, not regulations, are the 

major source of project delay. 

Thank you again for the opportunity to participate in this hearing, and I look forward to your questions, and Mr. Kovacs’ 10 seconds. 

Senator PORTMAN. Yes, Mr. Kovacs, thank you for your generosity to Mr. Slesinger. 

First, thank you for the great testimony, and colleagues have 

now had to go to other hearings. Some of them will probably be 

back. I said I was going to defer my questions, but I will go ahead 

and ask a couple quickly and then get to Senator Carper. 

All of you talked a lot about this issue of the dashboard and 

whether it is working or not. There are 34 projects currently listed. 

I think you said 35, Bill. I guess there is one more that has been 

added from a sponsor. Our intent was not to just have projects listed that the Council thought were appropriate, but also to have 

sponsors be able to apply for that. 

Mr. Kovacs, you may know something about this, having worked 

with some of these sponsors. Are there other project sponsors who 

are applying to have their projects designated? And if not, why not, 

from your perspective? Or anyone else who has a thought on that. 

Mr. KOVACS. As I mentioned in my statement, we have had four 

meetings with our members on this issue to educate them, and 

there was honest concern as to, well, why is Congress putting permit streamlining in this bill or that bill? I think Scott and I have 

talked about this many times, and we have obviously tried to lobby 

both the House and the Senate on why are you doing this. So I 

think there was a lot of confusion. 

Two, without the Executive Director, I think that there was really not the time pressure to really move the projects. The projects 

were initially put on by President Obama, and it sort of stopped 

at that point in time. I am not criticizing it, but it is a lack of 

knowledge of the part of the business community. One of the things 

that is going to have to happen is that there is going to have to 

be an educational program for everyone to understand this, or as 

a few projects get in, but, like everything else, there is going to 

have to be success in the system to show that it can work. Certainly the structure should be able to work. But there is still going 

to have to be this push to say come into the system. 

The other thing is I think President Trump’s Executive Order 

really helped. When the first Executive Order came out, there was 

an enormous amount of confusion as to what is going on in the sys-
18 

tem. Through education, that has been worked out, and I think everything that is coordinated, and coordinated very well, because 

other projects that may not necessarily get into the system can now 

come into the process. 

But the second thing is a lot of the projects that we are looking 

at are standard, like, for example, the FERC projects or the water 

projects. You also have the ability to put in manufacturing, and 

that goes to the West Virginia projects where they are trying to 

really redevelop all of West Virginia. But it also goes to broadband 

where they are looking at putting in $250 billion into rural 

broadband. So there is a lot of potential, but it has to be used. 

Senator PORTMAN. I think that is a good point. My perspective 

from talking to some of these folks in the private sector with regard to public-private partnerships, which is part of the intent of 

this with infrastructure, is that they saw too much uncertainty, 

both because of the slow implementation of the Council and because of some of the confusion as the new administration came in 

with the Executive Order that seemed to be, as Mr. Slesinger said, 

contradictory in some respects and literally shifted responsibility, 

as you know, away from OMB that we had put in the legislation 

on purpose because we wanted OMB, with the levers that they 

have with agencies, to have that ability to help make this Council 

and the interagency process effective. 

So I think you are right. I think now that we are back on track 

and now that we have an Executive Order that seems consistent 

with the legislation—although some of you are going to have some 

comments on the Executive Order, I think we are in much better 

shape to have these sponsors realize there is some benefit here 

rather than the confusion. 

Mr. KOVACS. I would just add one point. The two things that the 

FAST Act has, FAST–41, one, the funding or the fee provisions are 

very important because that goes to Scott’s point that one can help 

out the agencies that do not have the money. That is crucial. But 

the second thing is it has a two year statute of limitations, and 

that is something that none of the other permitting processes have, 

and that is crucial to ensuring that the process will be quick. 

Senator PORTMAN. Yes. That two years started, as I recall, with 

120 days or something like that, and Mr. Slesinger and others convinced us to lengthen that as part of a compromise. But it is an 

advantage, and I think a lot of people do not realize that. It goes 

to the issue that Brent was talking about. Mr. Booker, you were 

talking about the litigation issues and how some of your guys cannot put food on the table and keep their jobs because of litigation 

being used inappropriately to try to slow down projects that they 

cannot stop otherwise on the merits. So I think that is something 

we have to communicate better to people. 

I will say D.J. Gribbin, Janet Pfleeger, and others have been very 

helpful with the Executive Order, trying to be sure we straightened 

out that issue. I think there was just a lot of activity early on. So 

I think we are in better shape there. But that is an important part 

of how to move forward. 

Mr. Slesinger, you had a question? 

Mr. SLESINGER. I would just suggest that I have a feeling it is 

going to be difficult to get project sponsors to voluntarily enter this 
19 

1The information from Mr. Slesinger appears in the Appendix on page 187. 

program until it is shown that it works. And, therefore, I think the 

Federal Government, where it is the lead such as on NASA projects 

or military projects, if these agencies use it and show it works, I 

think then you will get the private sponsors to be more comfortable 

with it. And so those projects are usually bigger, which is what is 

usually left for the Federal Government to do. But I think those 

projects, if we can get those moving and work efficiently, I think 

that would make sponsors more willing to try this. 

Senator PORTMAN. Yes, I think that is an excellent point. 

I am going to turn to Senator Carper, and then I have some follow up questions. Go ahead. 

Senator CARPER. Thank you. Thank you so much for joining us. 

Mr. Gerken, I listened with interest to what you had to say about 

hydro. My wife and I were fortunate to attend with, I think, about 

20 other congressional couples—House Members, Senators, Democrats, Republicans from all over the country—an Aspen Institute 

seminar. I do not know if Senator Portman has ever attended one 

of those, but George Voinovich, I know, and his wife used to go. But 

we do not spend a lot of time with the House as colleagues, and 

we do not always have the kind of communications across the aisle 

that we should have with the opportunity between Democrats and 

Republicans. It was a great chance to do that. 

I was interested to find out that Norway is numbered five or six 

in terms of known oil and gas reserves in the world, a little country 

of five million people. They derive 98 percent of their electricity 

from hydro. Forty percent of their cars are powered by electricity 

now, and they are hugely interested in finding ways to clean the 

environment and meet their environmental goals, but also to create 

jobs, and they are pretty good at it, and really good at retraining 

people for new industries that are emerging. 

I know not everyone is comfortable with hydro. In some places 

it is appropriate; in some places it is not. Scott, this might be a 

question I could just lead off with you. I live in the lowest-lying 

State in America. Every day we see the vestiges of climate change 

and global warming. Our State is sinking, and the seas around us 

are rising. And we are anxious to address climate change and do 

it sooner rather than later. I am not sure if hydro can be part of 

the solution. I am an advocate for nuclear power plants, done safely, but we are seeing nuclear plants being closed down across 

America, and they have been for years, like 60 percent of our 

source of electricity is pollution-free. So are we missing something 

with hydro or not? 

Mr. SLESINGER. I am not a hydrologist or one of the experts on 

that, but we do have those at NRDC. I would just say there are 

issues with the water temperature that hydro creates that could 

have impacts on fish and fishing. And so that is, I think, the major 

issue, but I can get our staff to get back to you on that.1

As far as nuclear power—— 

Senator CARPER. No, I am not interested in talking about nuclear. 

Mr. SLESINGER. All right. 

Senator CARPER. I just wanted to focus on hydro. 
20 

Anybody else have a thought on hydro? Marc, you can comment 

more. Brett, please? 

Mr. BOOKER. I do not have a whole lot of experience. I am actually going to Canada next week, and they have some very large 

hydro projects that they are building in Canada. From our perspective on a job creation and a clean power perspective, it works up 

there. I am going to Newfoundland next week to tour a site and 

get some more information, and we will certainly follow back up 

with you. 

Senator CARPER. Do you know where the first Finns came to 

America and landed? Wilmington, Delaware. And do you know 

what they declared as they planted their flag? The Colony of New 

Sweden, because at the time there was no Finland. It was like 375 

years ago. They were part of Sweden. But the Finns, go visit those 

guys. 

Go ahead, finish. 

Mr. GERKEN. I think I would like to just give a little bit of injection, too. 

Senator CARPER. Please. 

Mr. GERKEN. There are a lot of different applications for hydro. 

There is pumped storage. Ours are run-of-the-river, low RPM, so 

we do not have the fish mortality. We do not have a lot of impacts 

on the environment. We do have mussel monitoring required. But 

you have some other bigger dams. They have bigger impacts. So I 

think you have to take each type of hydro as a one-off and analyze 

it. 

For us, it is a long-term strategy. We fit it into our whole portfolio, and our members own about 20 percent renewable energy in 

Ohio themselves, and they are not mandated. So they see the need 

to get cleaner. 

And from a CEO perspective, I feel a lot better about the operation of hydro than I do with my coal plants or my combined cycle 

plants because those have higher maintenance costs. With these 

turbines that are low-spinning, there can be bearings issues, but it 

is usually a 10 year cycle for major maintenance overhauls, that 

type of stuff, and it is very minimal cost. So we see it as the future. 

Senator CARPER. OK. Thanks. 

A long time ago, I learned that the key to success in most organizations—I do not care if they happen to be a government, a business, a school, a sports team—the key is almost always leadership. 

And to paraphrase—I think it was Alan Simpson. Alan Simpson 

used to say: ‘‘Integrity, if you have it, nothing else matters. Integrity, if you do not have it, nothing else matters.’’ I think the same 

thing is true about enlightened leadership and principled leadership. 

We have the position of Executive Director of the Federal Permitting Improvement Steering Council, and it needs leadership. They 

have interim leadership right now, but I am going to ask each of 

you to share with our Chairman and myself some of the key elements that the President and the folks running it should be looking 

for in identifying and selecting someone to lead this Council. Do 

you want to start off, Mr. Gerken? 
21 

Mr. GERKEN. Fine, and I do believe leadership is—it does wonders when you have an organization that has great leadership, so 

I think that is the key. 

I think that—I am not sure who talked on this—I think it was 

Senator McCaskill, that it takes some political ability to wade 

through the politics, which are always going to be there. I think he 

or she has to have a strong understanding of the stakeholders on 

all sides of the fence. From that perspective, you just cannot take 

and pluck one side out. I think it has to be somebody that can work 

across the aisle. And then, actually, the other thing is that you 

need to put a team underneath that Executive Director that is effective. 

Senator CARPER. All right. 

Mr. GERKEN. And it needs the proper funding as well. 

Senator CARPER. OK. 

Mr. GERKEN. Or else it will die. 

Senator CARPER. Thank you. Brent. 

Mr. BOOKER. Without being repetitive, leadership—— 

Senator CARPER. You can be repetitive. Sometimes repetition is 

good. 

Mr. BOOKER. Leadership, knowledge, knowledge of the agencies, 

knowledge of the stakeholders, someone to be able to convene the 

stakeholders, all of the stakeholders around the table and trying to 

realize the solution. At the end of the day, we are looking for predictability. Whether you are a CEO of a power company, whether 

you are a labor leader, the Chamber of Commerce, everybody needs 

predictability. And for us to be able to train people, for our contractors to be able to bid it, for our owners to be able to deploy capital, 

you have to have somebody that is leading that ship and to know 

that it is going to take X amount of time for me to get through 

that. Tell me what the rules are and let us follow the rules. So predictability, something that can provide that for us would be key. 

Senator CARPER. Great. Mr. Kovacs. 

Mr. KOVACS. Well, I would stay with the political skills specifically to organize and negotiate with the various stakeholders, because at this point in time, you have almost every agency in the 

Federal Government in some way that could possibly be involved. 

I think the second thing is they really need to understand the administrative procedures, just how agencies work, how does government works, what can you do legally, what can you not do legally. 

And I think, finally, some understanding of budgets and how to 

get the money, because at the end of the day, if this agency or 

group is not going to be able to get the money, it is not going to 

be able to function. 

Senator CARPER. That is a good list. Thanks. Scott. 

Mr. SLESINGER. The permitting process can be a very complicated 

area, multiple scientific disciplines, economics, and the law. So the 

Executive Director must have broad experience and sufficient 

qualifications to successfully lead in the implementation effort. 

More importantly, as you point out, because of the political 

issues that are involved with all these Federal agencies, this person needs the support of the CEO, the President because that is 

the only way he or she is going to be effective to make this program 

work with all these agencies involved. 
22 

Senator CARPER. OK. Good. Thanks to all of you. 

Senator PORTMAN. Thank you all very much. 

Let me just ask a couple of follow up questions. One for Mr. 

Booker, just to get it on the record. You made a lot of good points 

about the fact that the Jobs Council and the Obama Administration actually recommended that we proceed with this, and that is 

one reason, I think, in the end we were able to get support from 

the Administration for the proposal. You also mentioned the cost 

of delay to the economy; $3.7 trillion was the number you used. I 

want to find out what your data is on that, because that is an incredibly important part of this, what is the cost of delay, which we 

have a tough time putting our hands around sometimes. You 

talked about the lawsuits. Sean McGarvey, by the way, has been 

terrific to work with on this, and particularly with regard to the 

NEPA issue and, how to ensure you have these regulations in place 

to ensure you have an environmentally sound project, but that you 

do it in a way that keeps people at work. 

Can you give us any specific examples of agencies delaying 

projects that impacted your members? If you cannot give them to 

us today, maybe you could follow up with some specific examples 

for us. 

Mr. BOOKER. The first one I will refer back to is one that is in 

FAST–41, in the fast track, is the Atlantic Coast Pipeline. In talking to them, they report out, National Park Service took over 14 

months to grant permission to survey a 0.1-mile crossing of the 

Blue Ridge Parkway. So 14 months to grant permission to do the 

survey. Once they granted the permission to do the survey, in one 

afternoon the survey was complete. So, I mean, that is one that is 

where you look at where we have problems with where we currently sit, and commenting on Mr. Kovacs and Mr. Slesinger and 

the other panelists here, you have to have success. We have a 

project, a $5 billion project, started the first initial permitting in 

2015. One of the delays which is going to put a year-long delay of 

in-service date is because it took 14 months to grant somebody permission to go survey the Blue Ridge Parkway, a 0.1-mile stretch of 

land. 

That is a current example of where we need improvement, where 

we can get a little bit better. We can look back, and I can provide 

you with a multitude of lists. 

One of the problems in preparing for this testimony is contacting 

owners that we work for, contractor partners that we work for. The 

problem is that they are all numb to it at this point. They know 

that whatever project it is, whether it is a combined cycle gas 

plant, a pipeline project, you name it, they have built into their 

time period it is going to take three, four, five years to get my permits; it is going to take millions and millions of dollars for me to 

do that. At the end of the day, the result of that is that instead 

of having four capital projects that they are considering, they have 

dropped that list down to two or three because they know how long 

it is going to take and they are numb to that fact, and that is just 

the way the game has been played. 

So getting this up and running, getting an Executive Director in 

place, having some success of these projects that are in FAST–41 

I think is going to change the perception, because the perception 
23 

right now is that I am not even going to go down this road on trying to deploy my capital on a multitude of infrastructure projects 

or energy projects or whatever they may be, because I know that 

it is going to take such a long amount of time for me to do it that 

I am limiting my resources. So instead of considering four projects, 

we are limiting it to two. That is how you get in your opening remarks of where we are at on American Society of Civil Engineers 

with a D-plus overall infrastructure grade. We cannot invest in our 

own infrastructure. 

Senator PORTMAN. Yes, and us being 39th in the world, and I 

think you make some excellent points, and, again, this is sort of 

the basis of this thing. Now let us make sure that it works to address that so that, in fact, they can have more projects and that 

your folks can have more certainty, as was said earlier. 

Mr. Gerken, you talked specifically about time is money. You 

said you had a 50 basis points increase in your borrowing because 

of the delay that you can point to. So, capital is global now, and 

what I have heard from a lot of folks with regard to infrastructure 

as we have dug into this is that one reason you see all those cranes 

in London or in Asia is because they do green-light projects more 

quickly, not just in the developed world but in the developing 

world, that they have figured out ways to have a NEPA-type process but to do it more efficiently and effectively. And, that makes 

it difficult for you to be able to get the borrowing costs down to be 

able to proceed with the next AMP hydropower project. Is that 

right? 

Mr. GERKEN. Right. Yes, exactly. To give you an example with 

R.C. Byrd, let us look at this project now. We have a license. Now 

we have to—as Senator McCaskill said, the Corps has already said, 

well, we do not like the biologicals, so we are going to go back and 

address the EA during their 404 or 408 process. Well, quite frankly, if you look at the 404 and the 408, what it is meant to do with 

the Corps has nothing to do with that process. It is dredging and 

dam stability. 

But what I am saying is I have a project. If I knew that there 

is FAST–41 and it was a two year process, I would be glad to pay 

some fee to help accelerate this thing. So that I could order turbines and have them ready to be put in along with the concrete, 

all that timing and that job sequencing saves money. And when 

you can stretch that construction period—and that goes with ordering the equipment—those are long lead time items—you can save 

money. And that is where it is at for us. 

Senator PORTMAN. Well, it is great testimony, great specific examples. 

Mr. Kovacs, you have this analysis of agency participation showing that some agencies have been less cooperative than others. I assume you included that in your testimony so it is part of our testimony here today. If not, without objection, I want it to be made 

part of the record. But if you could please just quickly—and this 

will be my last question—tell us what we ought to do about it. If 

you want to talk a little bit about which agencies are lagging, that 

would be good. I named some earlier. Naming names always helps. 

But what should we do about that? Obviously we would like to 

have continued follow up from all of you on the questions we have 
24 

asked today to be able to continue to have this oversight that Senator McCaskill, Senator Carper, and I talked about today. But, Bill, 

why do you not address that quickly? 

Mr. KOVACS. Sure. It was not put in there to be critical of the 

agencies. What it was to show is that the agencies that do permitting a lot, FERC and the Bureau of Land Management (BLM), are 

fairly good if you look at the dashboard. Everything that they do, 

every permit that is involved, the deadlines, whether they met it 

or not, they seem to be able to do the process. 

When you get into the Bureau of Indian Affairs, HUD, Nuclear 

Regulatory, they just do not do a lot of it, and I think one of the 

things that is going to happen is you need some education within 

the agencies. And I say this because when we were dealing with 

energy savings performance contracts, nothing to do with this, but 

it was a very novel concept, how the Federal Government finances 

renewable energy within office buildings. The biggest problem that 

we have is that the energy officers who are working in the agencies 

did not understand how to do it, and gradually it went up from 

about $500 million to $4 billion, which is money that is being invested that the government does not have to pay for, and it is paid 

for out of the energy savings. 

And, again, I think if this is going to be successful, not only do 

you have to have the political organization to be able to work with 

the various agencies, but you have to educate them, and that is 

crucial because you may think that the most important ones in the 

world are the energy projects or the highway projects. But at the 

end of the day, you are still going to want to do broadband and you 

are going to want to do other things. I think you have to bring the 

others in. 

Senator PORTMAN. Yes. Well, we want you to keep their feet to 

the fire. Again, thank you very much for your testimony today. 

I am going to turn to Senator Carper for any final questions. 

Senator CARPER. Thanks, Mr. Chairman. 

I was privileged to serve as Governor of Delaware from 1993 to 

2001. The person who preceded me as National Governors Association (NGA) Chairman was George Voinovich, a dear friend of the 

Chairman’s and mine. The year after I stepped down as Chairman, 

I got to be Chairman of something called the NGA Center for Best 

Practices, and what it is is a clearinghouse for ideas that work. It 

could be reducing recidivism. It could be reducing dropout rates. It 

could be success in getting people off of welfare and working on a 

permanent basis. But the idea was to find out what was working 

from one State to the other and see if it was replicable and provide 

contact information. It is actually more vibrant today than it was 

when George and I were serving together. 

It seems to me that one way that the Federal Permitting Improvement Steering Council could make a difference is by learning 

what some agencies might do well when it comes to environmental 

reviews and permitting decisions and encouraging other agencies to 

be aware of that and to see if that might be replicable. 

Do you know of any progress that the Council has made in this 

area to date? I describe it as, ‘‘Find out what works, do more of 

that.’’ And do you know of anything that has been done along these 

lines to help in this regard, in this specific regard? 
25 

Mr. KOVACS. They actually have issued their first booklet on best 

practices, and it is to be done every year, and it is in several places 

within the statute. So it is something that is being incorporated. 

It is just going to have to be something that they really do every 

year, and that is just keep on top of it. 

Senator CARPER. Anyone else? 

Mr. GERKEN. I think that one of the things that is important is 

the transparency side of it, and I think that when everybody has 

a flashlight shined on them and they have to do a job, it does 

makes a difference. And that is why I think the Council getting an 

Executive Director is critical, because—and I am saying the flashlight goes on my folks, too. I mean, it is not one way. And so I 

think the sooner you have that and the dashboard from schedule, 

from transparency, is very important. And even for a person like 

me, I am going to be able to look at it and be able to see where 

we are letting ourselves down, because there are times when we 

are not holding up our end of the bargain either. So the transparency, I think is critical. 

Senator CARPER. All right. Thank you. 

Today, as we are trying to help a lot of unfortunate people in 

Texas and the gulf coast to recover from a desperate situation, and 

now we have another storm bearing down on Florida. And I mentioned earlier I represent a State that is the lowest-lying State in 

America, and we see the vestiges of climate change literally every 

day. This hearing has been focused on the risks and uncertainties 

for projects prior to being built, which is important. However, there 

can also be risks to infrastructure once it has been built, and particularly in low-lying areas like my own State, where we are seeing 

the vestiges of sea level rise every day. 

How do you believe that public agencies and project sponsors 

should be integrating climate change projections and sea level rise 

into project reviews? Mr. Slesinger? 

Mr. SLESINGER. I think it is critical, and I think the law, actually 

the way the National Environmental Policy Act works, you are supposed to look at what the environmental impact of a project is 

going to be. And many of those projects, those larger projects, will 

have either climate impact or will be impacted by climate. And so, 

therefore, we have to do projects that make sense. 

There is an amendment in MAP–21 that says, if there is a declared emergency, you can avoid NEPA and get moving right away 

by rebuilding in the exact same place with the exact same footprint. That seems, if you look at what has happened in Houston, 

the exact wrong thing to do. And so we want to make sure when 

people do rebuild, when they do have a climate impact, that they 

know this is not a 1 in 1,000 year event that is not going to happen 

for millennia. Flooding again is a risk, and we need to look at what 

is reasonably going to happen because of climate and take that into 

account. And that is—frankly, one of the key parts of NEPA, other 

than letting the local people know what is going on in their area 

by the Federal Government, is to think before you act. Think before—plan, then build; not build, get flood insurance, and then rebuild again. 

And so the Council on Environmental Quality (CEQ) came out 

with guidance to help agencies do this. It has the terrible name of 
26 

‘‘social cost of carbon.’’ But when agencies do projects, when big 

sponsors do projects, they really have an obligation under NEPA to 

look at what the environmental and community impacts are going 

to be before they build so we can build smart and save, in the end, 

taxpayers’ money and probably lives. 

Senator CARPER. All right. Anybody else want to comment on 

this? Mr. Gerken. 

Mr. GERKEN. I will. One of the things that AMP has done on all 

of our hydros that we have on the river is we set our elevations 

on the top of our projects to be at the 100-year flood, so they get 

overtopped at a 100-year flood. One of the reasons is we do not 

want to impact anything, catastrophic flooding down the river, so 

the modeling addresses that. So once we get a 100-year flood, our 

project, our hydro project, is not impacting those hydraulics going 

forward. And we think that is very important for a lot of reasons. 

One is permitting. But, two, we think it has less impact, and we 

feel good about that. 

Do we get overtopped a few times? Yes. It is just some work you 

have to do to seal it up. But we think that is being a good steward 

as well, as well as running run-of-the-river hydro is carbon-free. 

Senator CARPER. Thank you, sir. 

One last word, Mr. Kovacs. 

Mr. KOVACS. One of the great parts of the FAST–41 is that there 

is initial consultation so that the agencies and the project sponsor 

have some idea what they are to do and what kind of information 

they are going to have. In that, one of the things that has not been 

mentioned today is we still have this Information Quality Act that 

is in the Federal Government where we use the best and most updated information. I think when you get to the flood areas, we have 

been using outdated information for decades. I think one of the 

things that is going to have to happen as part of the initial consultation is you are going to have to be honest with each other, because at the end of the day, if the project is not going to go forward, the sponsor would rather know that and get out. When we 

did our project no-project study, one of the things people found out 

is they had their financing for five years, but the effort and the 

permitting took seven. They would have just rather known in year 

one that they needed to go somewhere else. 

Senator CARPER. Our thanks to each of you. 

As the Chairman knows, we have a Finance Committee hearing 

underway and the Children’s Health Insurance Program (CHIP) reauthorization, which is an important piece of legislation. And the 

Health, Education, Labor, and Pensions (HELP) Committee, has 

the Governors before them today on health care reform and trying 

to stabilize the exchanges. I am going to try to hit both of those, 

and I will try to get back before the next panel is through. But if 

I miss it, just our thanks to all of you for being here. And, again, 

to my leadership, my Chairman and for Senator Claire McCaskill, 

thank you. 

Senator PORTMAN. Gentlemen, thank you very much. I appreciate your testimony. We will now call the second panel. 

The first witness in the second panel is Janet Pfleeger. We 

talked about Janet Pfleeger earlier as the Acting Executive Direc-
27 

1The prepared statement of Ms. Pfleeger appears in the Appendix on page 103. 

tor of the Federal Permitting Improvement Steering Council. We 

appreciate her service. 

Second, Terry Turpin. Terry is Director of the Office of Energy 

Projects at the Federal Energy Regulatory Commission. We have 

talked about FERC quite a bit in this hearing. 

Third, Robyn Colosimo. Ms. Colosimo is the Assistant for Water 

Resources Policy for the Office of the Assistant Secretary of the 

Army for Civil Works (OASACW). We have talked about the Army 

Corps quite a bit today. 

And then, finally, Gary Frazer, Assistant Director for Ecological 

Services at the U.S. Fish and Wildlife Service. 

We appreciate each of you coming today, and thank you for your 

willingness to be here to hear the other panel and also to testify 

today and for your good testimony you submitted in advance. We 

look forward to hearing from you. 

Again, it is the custom of this Subcommittee to swear in witnesses. I ask you, now that you are seated, to please stand and 

raise your right hand, and I am going to ask you a question. Do 

you swear the testimony you will give before this Subcommittee 

will be the truth, the whole truth, and nothing but the truth, so 

help you, God? 

Ms. PFLEEGER. I do. 

Mr. TURPIN. I do. 

Ms. COLOSIMO. I do. 

Mr. FRAZER. I do. 

Senator PORTMAN. Excellent, noting that each of the witnesses 

has answered in the affirmative. I want to tell you that we will 

stick to the timing system, as we did earlier, and try to keep it to 

five minutes each. Then we will have the opportunity for some 

questions. We appreciate your being here today and the valuable 

information you are going to provide with regard to this important 

oversight hearing. 

Ms. Pfleeger, we will hear from you first. 

TESTIMONY OF JANET PFLEEGER,1 ACTING EXECUTIVE DIRECTOR, FEDERAL PERMITTING IMPROVEMENT STEERING 

COUNCIL 

Ms. PFLEEGER. Chairman Portman, thank you for the opportunity to appear before you today. The time required for infrastructure projects to navigate through the labyrinth of the Federal permitting process is simply unacceptable. The Federal Permitting Improvement Steering Council brings accountability and transparency 

to what has been for too long an uncertain and unpredictable process, one that does not lead to better community and environmental 

outcomes. 

Through FAST–41, you provided us with the tools to bring transparency, accountability, and predictability to the permitting process 

while protecting public health, safety, and the environment. 

My office is actively working with the Administration to improve 

the permitting process for infrastructure projects. Last month, 

President Trump signed Executive Order 13807, entitled ‘‘Establishing Discipline and Accountability in the Environmental Review 
28 

and Permitting Process for Infrastructure Projects.’’ The EO enhances the work of the Permitting Council through the establishment of a ‘‘One Federal Decision’’ policy and through a Cross-Agency Priority (CAP) Goal that establishes management accountability 

within agencies for infrastructure permitting modernization goals. 

The framework for implementing One Federal Decision will be developed in consultation with the Permitting Council, as will the 

CAP Goal’s accountability system. 

Since being hired in January as Deputy Director of the Permitting Council’s Office of the Executive Director, where I am now 

serving as Acting Executive Director, my office has been using 

FAST–41 to break down the institutional silos responsible for red 

tape and unacceptable permitting decision timelines. My office has 

focused on three areas that I would like to highlight for you today: 

institutionalization of best practices through early and formalized 

cross-agency coordination, increased transparency through the Permitting Dashboard, and project-specific coordination and dispute 

resolution. 

To my first point, FAST–41 requires the development of interagency Coordinated Project Plans (CPPs), an essential tool for 

cross-agency planning and implementing best practices. The initial 

development and quarterly updates of CPPs formalize interagency 

collaboration and force agencies to address difficult issues early in 

the permitting process to prevent confusion and delays later in the 

process. 

To my second point, the Permitting Dashboard brings an unprecedented degree of transparency to the permitting process. The permitting timetable developed in every project’s CPP is made public 

on the dashboard, which lists target completion dates for all permits. Each quarter, my office and the permitting agencies review 

those dates, and my office enforces the FAST–41 restrictions for 

modifications to those dates. With nationwide visibility and builtin accountability structures, the dashboard helps keep projects on 

schedule and provides permitting predictability. 

To my third point, project sponsors have contacted my office for 

help with specific issues such as when a sponsor received contradictory information from headquarters and field offices or when different agencies working together on a project disagreed on a path 

forward. We are requiring agencies to use the tools FAST–41 provides to share information so they identify and resolve discrepancies early. 

By focusing on these three areas, the Permitting Council is 

transforming the Federal permitting process, with recent successes 

in both systematic and project-specific improvements. FAST–41 

brings about a new way of doing business that addresses common 

stakeholder concerns and improves permitting timelines. 

My office has only just begun to carry out our responsibilities 

under FAST–41 using initial funding from Cross-Agency Priority 

Goals. Going forward, the President’s Fiscal Year 2018 budget request of $10 million provides the funding support we need to fully 

carry out responsibilities given to us in statute. Additionally, 

FAST–41 provides the authority to issue fees regulations, and the 

Permitting Council is working to take advantage of this important 

tool. 
29 

1The prepared statement of Mr. Turpin appears in the Appendix on page 114. 

In conclusion, FAST–41 is not the first time the Federal Government has tried to reform the permitting process, but this is the 

first time the framework to accomplish real reform is in place. I 

thank you for the opportunity to testify before the Subcommittee 

today and welcome your questions. 

Senator PORTMAN. Thank you for that good testimony, Ms. 

Pfleeger. Mr. Turpin. 

TESTIMONY OF TERRY L. TURPIN,1 DIRECTOR, OFFICE OF ENERGY PROJECTS, FEDERAL ENERGY REGULATORY COMMISSION 

Mr. TURPIN. Good morning, Chairman Portman. I am the Director of the Office of Energy Projects at the Federal Energy Regulatory Commission. The office is responsible for taking a lead role 

in carrying out the Commission’s duties in siting infrastructure 

projects including: non-Federal hydropower projects, interstate natural gas pipelines and storage facilities, and liquefied natural gas 

(LNG) terminals. 

Thank you for the opportunity to appear before you to discuss 

FERC’s process for reviewing this kind of infrastructure as well as 

FERC’s work with the Federal Permitting Improvement Steering 

Council. As a member of the Commission’s staff, the views I express in my testimony are my own and not necessarily those of any 

individual Commissioner or of the Commission. 

Under the Natural Gas Act, the Commission is responsible for 

authorizing the construction and operation of interstate natural gas 

facilities and facilities for the import or export of natural gas. Since 

2000, the Commission has authorized nearly 18,000 miles of interstate natural gas pipeline totaling more than 159 billion cubic feet 

per day of transportation capacity, over one trillion cubic feet of 

interstate storage capacity, and 23 sites for either the import or export of LNG. Under the Federal Power Act (FPA), the Commission 

regulates over 1,600 non-Federal hydropower facilities at over 

2,500 dams. Together these represent about 56 gigawatts of hydropower capacity, which is more than half of all the hydropower capacity in the United States. 

In the last five years, the Commission has authorized 69 new 

projects with a combined capacity of over 2,400 megawatts and has 

relicensed 42 projects which provide over 91 megawatts of generating capacity. For both these types of infrastructure, the Commission acts as the lead agency for the purposes of coordinating Federal authorizations as well as for the purposes of complying with 

the National Environmental Policy Act. The environmental review 

that is done is carried out through a process that allows cooperation from numerous stakeholders, including Federal, State, and 

local agencies, Native Americans, and the public. 

The Commission’s current approach allows for a systematic and 

collaborative process and has resulted in substantial additions to 

the Nation’s infrastructure. To a great extent, the process established by FAST–41 to improve early consultation and to increase 

transparency of project review mirrors the Commission’s existing 

collaborative process. 
30 

1The prepared statement of Ms. Colosimo appears in the Appendix on page 124. 

Commission staff is committed to working with the Council to assist in the successful implementation of FAST–41 and to ensure the 

most effective processing of energy infrastructure matters before 

the Commission. 

This concluded my remarks. I would be happy to take any questions you have. 

Senator PORTMAN. Great. Thank you, Mr. Turpin. I appreciate 

that. Ms. Colosimo. 

TESTIMONY OF ROBYN S. COLOSIMO,1 ASSISTANT FOR WATER 

RESOURCES POLICY, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) 

Ms. COLOSIMO. Chairman Portman, I am Robyn Colosimo, the 

Assistant for Water Resources Policy in the Office of the Assistant 

Secretary of the Army for Civil Works. Thank you for the opportunity to discuss the U.S. Army Corps of Engineers water resources 

infrastructure projects and the Regulatory Program within the context of Title 41 of the Fixing America’s Surface Transportation Act. 

The underlying objective of the FAST–41 provisions is to improve 

the Federal permitting process for infrastructure projects by integrating and streamlining Federal agency processes relevant to permits, approvals, determinations, and permissions. The Corps fully 

supports this objective. 

The Corps strives to provide timely and efficient decisionmaking 

both for the development of its water resources infrastructure 

projects and for applicants that may seek approval under one of its 

regulatory authorities for construction of an infrastructure project. 

The Corps fosters deliberate and open communication with applicants that request permits from the Regulatory Program under 

Section 10 of the Rivers and Harbors Act and/or Section 404 of the 

Clean Water Act (CWA) or request permission to modify or alter 

authorized water resources development projects under Title 33 of 

the U.S. Code, Section 408. The Corps also engages early and often 

with other Federal agencies to seek their feedback and synchronize 

their review with the Corps decisionmaking processes for infrastructure project proposals. 

For several years, the Corps has been sharing best practices from 

its Regulatory Program with other Federal agencies, including on 

the use of general permits and on the synchronization of review 

processes. The Corps also supports transparency and accountability, for example, by working with other agencies to provide permitting timelines for projects on the Infrastructure Permitting 

Dashboard. 

Starting in 2016, the Corps has been actively working with the 

Federal Permitting Improvement Steering Council and its member 

agencies to provide information on its Regulatory Program tools, 

databases, and codified decisionmaking procedures. The Regulatory 

Program utilizes a streamlined permitting process for the majority 

of activities it reviews. General permits are available where the 

proposed activity is minor in terms of its anticipated impact on 

aquatic resources. General permits reduce the time and cost to the 

applicant of preparing an application and reduce the time and cost 
31 

1The prepared statement of Mr. Frazer appears in the Appendix on page 127. 

to the Corps of reviewing the application. In Fiscal Year 2016, 94 

percent of the Corps permit workload was processed by general 

permits, and 87 percent of these were issued in 60 days or less. 

This enable the Corps districts to focus on the proposed activities 

that are more likely to have the potential for substantial adverse 

environmental impacts on aquatic resources and, therefore, to require a more detailed project-specific review. For applicants proposing such activities, the process involves submitting an individual permit. Of the activities requiring individual permits, 58 

percent were issued within 120 days of receipt of a complete application. 

The Corps has actively engaged with FPISC and other member 

agencies in the development of the implementation guidance for 

FAST–41. The scope of covered projects under FAST–41 generally 

applies only to certain infrastructure proposals that are subject to 

NEPA, likely to require an investment of more than $200 million, 

and do not qualify for abbreviated authorization or environmental 

processes under any applicable law. Another factor for projects to 

be included is when the size and complexity make the projects likely to benefit from enhanced oversight and coordination, including 

projects likely to require authorization from or environmental review involving more than two Federal agencies or the preparation 

of an environmental impact statement under NEPA. 

The Corps has worked expeditiously in the implementation of 

FAST–41, and is continuing to work at further improvements to facilitate implementation of this act such as automating data entry 

to the extent possible by making the Federal Infrastructure Dashboard compatible with existing agency websites that track some of 

the data required on the dashboard. 

FAST–41 is most beneficial to those projects where the Federal 

Government has a substantial role in permitting or approving the 

project, but which does not already qualify for abbreviated authorization or environmental review processes under other statutes. For 

example, there may be large infrastructure projects that meet 

FAST–41 criteria, but the Federal Government may only have a 

role in the review of an ancillary component of the larger infrastructure project, the review of which is already abbreviated, using 

existing authorities such as the Corps’ nationwide Permits Program 

under the Clean Water Act. 

Thank you for the opportunity to share the Corps’ experience and 

perspectives on implementation of FAST–41. We look forward to 

continuing to support FPISC and other member agencies on sharing of best practices and greater efficiency and transparency in our 

review of infrastructure projects. 

Senator PORTMAN. Great. Thank you, Ms. Colosimo. Mr. Frazer. 

TESTIMONY OF GARY FRAZER,1 ASSISTANT DIRECTOR, ECOLOGICAL SERVICES, U.S. FISH AND WILDLIFE SERVICE, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. FRAZER. Good morning, Chairman Portman, Ranking Member Carper, and Members of the Subcommittee. My name is Gary 

Frazer, and I am the Assistant Director for Ecological Services at 
32 

the U.S. Fish and Wildlife Service. I appreciate the opportunity to 

testify today on the Service’s work on implementation of FAST–41. 

The Service is responsible for reviewing and permitting projects 

under a number of statutory authorities, including the Endangered 

Species Act, the National Environmental Policy Act, and the Fish 

and Wildlife Coordination Act. The Service’s role is to facilitate the 

development and timely decisionmaking of environmentally sound 

infrastructure projects. The Service works with project proponents 

and regulatory or construction agencies to help avoid and minimize 

harm to fish and wildlife and to offset those impacts that are unavoidable so as to facilitate these important projects while ensuring 

the conservation of our Nation’s fish and wildlife resources. 

The Service typically carries out these activities in the field as 

a participating or cooperating agency under FAST–41, working 

with the lead agency for a project in reviewing and commenting or 

consulting on the project plans within set deadlines. We also engage at the national level to advise the Council in identifying and 

implementing best practices and policies related to FAST–41. 

The overwhelming majority of the Service’s activities are carried 

out at the field level. The Service’s local field staff have in-depth 

knowledge of the ecosystems in which they work and the species 

that inhabit them, bringing expertise to project reviews to facilitate 

efficient, project-specific analyses. Larger and more complex 

projects, like those covered by FAST–41, may fall under the jurisdiction of two or more field offices or regions. Our objective is to 

provide project proponents and regulatory agencies with consistent 

and efficient review and comments and, where feasible, a single 

point of contact. 

At this time, the Service is either a cooperating or participating 

agency in the majority of FAST–41 projects. I have highlighted a 

couple of these projects in my written testimony, and they illustrate ways in which the Service has worked with other agencies 

and project proponents to efficiently and effectively review and permit large and complex infrastructure projects. 

But we are not perfect, and FAST–41 provides a helpful framework for us to improve our processes. The Service is committed to 

improving the environmental review process to facilitate environmentally sound infrastructure development through timely, transparent, and predictable reviews, while ensuring the conservation of 

our Nation’s fish and wildlife resources. We view FAST–41 as a 

constructive framework for arriving at more timely decisions. In 

addition to facilitating increased coordination, FAST–41 increases 

the accountability of all parties involved by designating priority 

projects, ensuring commitment to agreed-upon timelines, and helping to identify and elevate potential issues earlier in the process. 

FAST–41 is a positive step in helping to integrate various reviews 

and facilitating efficient processes across the Federal Government. 

Thank you for the opportunity to discuss the Service’s work in 

implementing FAST–41, and I would be happy to address any 

questions you may have. 

Senator PORTMAN. Great. Thank you. Thank you all for your testimony. 

Since the last two witnesses talked about their extensive work 

with regard to FAST–41, let me just follow up quickly on a concern 
33 

that has been raised to us and I think also to Ms. Pfleeger, and 

she can speak about herself, and that is that at the headquarters 

level, there seems to be quite a bit of sophistication and focus on 

this issue; whereas, at the district offices, sometimes that breaks 

down. So we hear from people who say, ‘‘Yes, I think, they understand at headquarters it ought to be done, but those requirements 

are applied inconsistently across the country, and we work with the 

agencies or offices that are dispersed elsewhere.’’ 

Can you talk a little about that? One, what are you doing to communicate to your district offices, your local offices, about the requirements of FAST–41? I know AMP included in its written testimony that the Corps sometimes, have not been communicating 

clearly to every office. I have certainly seen that with regard to 

other Corps projects sometimes. Sometimes the right hand does not 

exactly share what the left hand is doing. Eventually, we resolve 

those issues. If you can talk a little about that and what could be 

done to ensure that we are getting that communication down and 

appropriate training down to your district and local offices. Why do 

you not go first, Mr. Frazer, since you were the last one to talk 

about this issue? 

Mr. FRAZER. Well, we have a network of about 80 Ecological 

Services field offices where most of our environmental review work 

is done and most of the project-specific coordination is done, and 

they obviously deal with some FAST–41 projects, but they also deal 

with many other projects. The mail brings in new projects every 

day, and they do their best to provide a high level of service for 

all of those. But when we are putting together and trying to stand 

up a new process that focuses on these particularly high-profile and 

highly important infrastructure projects, it is not something that is 

an immediate game changer for them unless they are informed as 

to the significance of this new process, the priority placed upon 

timely and effective review, and how they should consider that in 

the context of all the other work that is coming into their office. 

That is where we play a role at the national level. 

I have staff that are directly engaged in working with FPISC 

Council in developing and standing up the rules and procedures 

and coordinating between the work of the Service and the other 

agencies. We are in regular communication with our regions and, 

through the regions, our field offices so they are aware of how this 

process is going to develop and the importance of them being able 

to work effectively in this, to be committed to the process, to working within the timeframes, to being conscientious about taking the 

actions that we are committing to when we engage in these sorts 

of projects. 

So it is a process. I think just like the Council is standing up 

their overall infrastructure, we need to also ensure that within our 

agency we have that sort of education and training going on internally. That is where we have a role in staffing and regular coordination with our field offices in that regard. 

Senator PORTMAN. Well, that is encouraging to hear. If you 

would, please, be willing to supply to the Subcommittee an example 
34 

1The information submitted by Mr. Frazer appears in the Appendix on page 265. 

of that communication and perhaps as a template for others as 

well.1

Mr. FRAZER. I would be happy to. 

Senator PORTMAN. Ms. Colosimo, could you respond also to this 

issue of field offices being consistent with headquarters? 

Ms. COLOSIMO. From a big picture, here are a few things about 

FAST–41 and our engagement. By purpose and design, the Steering Committee member is actually out of the Office of the Assistant 

Secretary of the Army for Civil Works, where we provide oversight 

to the Corps of Engineers. But by intention, the Chief Environmental Review and Permitting Officer (CERPO) is actually at the 

Corps headquarters, and that was intended to help engage the field 

and provide more direct oversight from both our regulatory and our 

408 programs. 

That said, we have actually spent a substantive amount of time 

with Corps field personnel in terms of developing guidance with 

them on how to implement, and we are making sure we are 

powering down those decisions to the appropriate level, but yet providing enough oversight for consistency. 

So as an example, in the 408 program, which is more about the 

impacts to Corps projects, the Federal investments Congress asks 

us to build, there have been concerns about application across the 

districts and we have spent a lot of time in training and trying to 

make sure that is happening. We are providing that oversight and 

trying to solve the problems that were highlighted by Ohio AMP. 

In terms of the actual day-to-day work, we are also tracking 

things like Mid-Barataria, which is a dashboard project where we 

are the lead agency, that are managed at the district level, where 

we can help engage with FPISC to solve problems as they emerge. 

We are making sure that we are focusing at the right level but providing the training and support at the DC level to make sure that 

personnel are embracing this process. 

It is true when it was stood up, to be frank, that it was more 

DC-driven. We are trying to put together a lot of the implementation guidance, and the challenge has been to make sure that we are 

getting out there and moving toward this project process. 

Senator PORTMAN. You mentioned Mid-Barataria. It was the first 

project, as I understand it, to be covered. 

Ms. COLOSIMO. Yes. 

Senator PORTMAN. And so the Corps was asked to be the first to 

jump off the diving board into the FPISC waters. 

Ms. COLOSIMO. It was fun. 

Senator PORTMAN. I guess the broad question is: What did you 

learn from that? What is it like to be the lead agency? And, what 

did you learn for the next project? It sounds like you were trying 

to lead from the headquarters at that point even though the folks 

in Louisiana were involved with the day-to-day, I assume, with 

that project. How did you work that out? What lessons did you 

learn that would be helpful for other agencies? 

Ms. COLOSIMO. There were a lot of lessons to be learned, and, 

frankly, we did it together with FPISC. I think the actual FIN 

came in on December 27. Not a lot of people were available to co-
35 

ordinate with at that time, but we got the right folks in the room 

and tried to figure out how to best proceed to meet the 14-day 

timeline specified in the law. 

I would say the biggest thing we learned in that process was to 

anticipate those activities coming forward, and we had known that 

there was some interest in putting Mid-Barataria on the dashboard, however we probably did not do enough on the pre-application side or pre-interest side to find out about the timing of that 

request so we could better align. 

Once we got into the process, I think we had already done a lot 

of work as a Steering Committee and a working group to develop 

the CPPs, the coordinated project schedules. Then it really became 

that we had not gotten all folks engaged enough to understand how 

to develop and populate those schedules once we concurred that it 

was a covered project. 

I would say since then the things that we are learning that apply 

across all the 35 projects on the dashboard have a lot to do with 

what we are actually populating in the CPP on the dashboard for 

transparency. So as an example, there are 15 projects on the dashboard where we are engaged. All of them involve some level of a 

Section 404 10 permit from us or a review from us. I believe a 

number of them, maybe 10, will likely be a general permit. And because of its abbreviated nature, it is sort of an estimate in time on 

when we would actually issue that permit where we are not the 

lead agency and where we would expect to get the information and 

then make the determination. The estimate versus when we get 

the application so we can make a more firm date, that kind of fluidity is the area I think we are all learning a lot about at this time. 

And, of course, once you put it on the dashboard, it is transparent 

and there are a lot of questions. It is very adaptable. 

Senator PORTMAN. Yes, that is the flashlight that was talked 

about earlier that is on you. 

Ms. COLOSIMO. Yes. 

Senator PORTMAN. So to all of you, thank you for what you do, 

because this is going to fail or succeed based on implementation at 

your level. There are some who complain, as you know, that this 

legislation did not go far enough in establishing not just goals but 

deadlines that had more significant consequences for the agencies. 

So to the extent you are, as you say, not just setting these out as 

goals but actually pushing your offices to meet these deadlines, it 

makes the process more effective, the structural work, but it also 

takes off some of this heat of people saying, well, FPISC is not 

strong enough in enforcing deadlines and timelines. 

I think it can work. I am not against having even more accountability in it, but this was a bipartisan process, and this is, I think, 

a very helpful structure. As Ms. Pfleeger has said, without this 

structure, despite all the efforts over the years, we have not had 

much success. Now we have structure that makes sense. But your 

job is to implement it and make sure that you are putting the pressure on your folks. 

Along those lines, Mr. Turpin, I have to ask you about FERC because FERC is now the lead on 13, I think, of the 34 projects, 

which would put you—I believe, Ms. Pfleeger, FERC then becomes 

your number one sponsor or number one lead. I do not think any 
36 

agency has that many leads. And I am concerned, as I said earlier, 

that FERC—I mentioned NRC. There are others who do not believe 

that all the provisions of FAST–41 apply to them. 

If I go on the dashboard and I look at any FERC project, I see 

that for every timeline entry, FERC says it cannot disclose timing 

of the proposed actions because its own regulations State that the 

nature and time of any proposed action by the Commission are confidential and shall not be divulged to anyone outside the Commission. Interesting. I am a recovering lawyer, so this is dangerous for 

me to talk about—but I always believed that statutes actually 

trumped regulations. And the statute requires you to provide that 

information. 

I would ask you—I do not want to accuse you of being a lawyer 

here, so if you do not feel comfortable answering the legal question—but how do you deal with that? Do not legislative actions like 

FAST–41 trump the regulations that you have in place? 

Mr. TURPIN. Well, I am an engineer, so I do not take offense at 

being accused of being a lawyer. I work with quite a lot of lawyers. 

I think that question is one we asked ourselves. Obviously, statutes 

will always trump regulations. We looked at the statute when it 

came out and tried to figure out how does it fit into the independent nature of a commission. From a practical standpoint, the 

schedule is set by the five-member panel. There is not an ability 

for us as staff to bind them to when they make a decision. Their 

judgment is based on when the record is right, that is when they 

are going to issue their decision on it. 

I did meet with your staff back in the spring, and this question 

did come up. At that point, we were without a quorum. Now we 

have one. It is certainly a question that can be raised with the new 

Commissioners and to see what direction they feel this should go 

in or instructions they can give to staff. 

Senator PORTMAN. We want to communicate directly to the Commissioners, and we have one member of the Commission, as you 

know, who is a former staffer up here who understands this process and helped us get this legislation through, understands the legislation well. And I guess, forgetting for a second the legal issue 

here, which I think is pretty clear, as you say, it is hard to see how 

FAST–41 can be effective if FERC is not going to disclose its 

timelines. That is my concern. How do you coordinate with other 

agencies and allow them to plan their own timelines if you cannot 

share that information with them? So I think we have to resolve 

this issue. Now that you have a quorum, you are going to start 

moving forward, as I understand. We are going to be discussing 

that with your Commissioners and also with the staff to ensure 

that we can move forward. 

Ms. Pfleeger, maybe you could comment on this. How does it 

work for FERC or the Nuclear Regulatory Commission I talked 

about not to disclose their timetables? How has the Council addressed that problem? Maybe you could talk more generally about 

how the Council addresses issues where agencies are not cooperating with FPISC. 

Ms. PFLEEGER. We are working very diligently with every agency, including FERC, and I think the point that Terry just made, 

now that the quorum is in place, we will be able to revisit this 
37 

issue. That Permitting Dashboard, with all those target completion 

dates, really is vital. It allows the project sponsors to plan. It allows the public to understand the timing for a project that might 

affect their area. So in terms of FERC specifically, we are looking 

forward to those conversations again. 

As far as all of the agencies go, it has been a learning process. 

How do they use the Dashboard? How do they put together a coordinated project plan? And though it is slower than you would 

have liked, we really are coming along now and seeing some of the 

successes. So just even three months ago, if you had looked at the 

Dashboard, compared to today, agencies have been trained in how 

to use the dashboard. We are working out some of the tweaks to 

ensure they can be successful. So I am seeing that as each month 

goes by, we are having successes that just build one upon another, 

and including with project sponsors, you are going to start hearing 

about how it is working, because we are seeing it. It is small successes building one on top of another, and I hope that you will be 

hearing similarly, because the Dashboard, the agencies, and the 

project sponsors, we are getting there. It took more time than we 

wanted, but we are at a place where I think you will start to see 

how things are working. 

Senator PORTMAN. Well, I appreciate that. This is where the rubber meets the road, and I am going to continue to be impatient because I think it is so critical to get this in place and get it right, 

in part, frankly, because of the other legislative initiatives that 

were talked about today, and I do not think more duplication and 

even inconsistencies or contradictory statutory provisions are going 

to be helpful, because our goal is to get these projects up and going. 

Part of the Permitting Council’s charge, as was talked about earlier, is to develop best practices, to streamline processes. Is that 

correct? 

Ms. PFLEEGER. Yes, that is correct. 

Senator PORTMAN. One of the best practices that has been identified is agencies jointly producing documents so that duplicative reviews do not have to be conducted by more than one agency. That 

is just sort of a common-sense part of this. We learned early on 

about the duplication and the cost in terms of time. 

In the testimony we have gotten today on the Byrd Project, we 

saw that FERC and the Corps were not able to come to an agreement and thus likely create that duplication. Why did FPISC not 

step in to push for best practices in this case if best practice is to 

have agencies jointly producing these documents? Do you need 

more authority to do that, to follow these best practices? In this 

particular case, why was FPISC not able to get these two agencies 

to work better together? 

Ms. PFLEEGER. So, certainly, yes, that is a vital best practice, the 

joint decisions. I would have to look at the exact timing here. 

One of the things I would say is as the project sponsor just mentioned in the first panel, with the issuance of the FERC license, we 

are going to be meeting with the Corps to carry out our responsibility for FAST–41 oversight, because once a quarter they have to 

review the coordinated project plan and the permitting timeline. So 

we are certainly going to be working with them on enforcing the 

provisions of FAST–41 and the best practices and joint decisions, 
38 

and also using some of the tools of the recent Executive Order that 

are moving toward these joint documents. 

So we agree that is the goal, and we need to enforce that, and 

that is the next step. 

Senator PORTMAN. Yes. And, adding Mr. Frazer in here, duplicative studies is another issue with the Corps and with others, I assume FERC. The idea is to not require that we have duplication 

of studies, and, again, we have heard about this in some of these 

projects, including the Byrd Project. 

A final question that I have is about funding, and all of you are 

free to chime in. I assume Ms. Pfleeger has some special insights 

on this. But, you all have the ability through this fee authorization 

to develop some resources there, and we heard from some publicprivate partnerships here earlier that they are willing to do that 

if they know there is some certainty and they are going to actually 

get faster review that way. You are looking at a budget request of 

$10 million, a House appropriations mark of $1 million. You have 

given our Subcommittee some information, which we appreciate, 

sort of the level of service chart, which I mentioned earlier, and 

you talk about what you could do with $4.5 million, what you could 

do with $15 million, and so on. 

Can you just give us today what you have discussed with us in 

private sessions, which is what is the minimal amount that you 

and your people need to be able to comply with the statute and actually continue to make the progress we all want to see and take 

it to the next level? What would that number be? What do you 

think is necessary? 

Ms. PFLEEGER. The President’s budget for Fiscal Year 2018 reflects the $10 million that we need to fully execute FAST–41, and 

we look forward to the funding that will allow us to use every tool 

that FAST–41 has given us, to work with every agency to get those 

benefits of the efficiencies from best practices. The Dashboard enhancements, that is going to be a key thing, to make sure we do 

not just take what the Dashboard has today, but we can fund enhancements to it to make it an even more important tool for that 

public transparency and accountability. So, yes, the Fiscal Year 

2018 President’s budget will allow us to do that. 

Senator PORTMAN. OK. Are there any further comments from the 

panel before I excuse you all? Any thoughts? Ms. Colosimo. 

Ms. COLOSIMO. I guess the one thing I would say is that we were 

talking a lot about the law and FPISC and the framework. The 

thing that is most important to me, and that has happened before 

we even got to the implementation guidance process last January 

is that it is really about relationships. We have projects up and we 

are learning lessons, and I think there is a lot of goodness there. 

But I think it is about reconnecting across agencies because we 

have been constrained by resources for a long time, so we have 

been in our own silos. 

I think a lot of the documents matter, but it is knowing who to 

call and how to frame the question and how to try to negate those 

problems through these relationships. I think that has been largely 

successful for all of us. These are complex projects on the dashboard, and that is important to remember. We do not want all the 
39 

goodness we do on the routine things to go away, but these complex 

projects require important relationships. 

Senator PORTMAN. I think that is an important point, and that 

is what I was saying earlier in terms of the importance of each of 

you and others who are in attendance at the hearing today or 

watching this proceeding. These agencies and the people who are 

in charge of providing the information is what is going to sink this 

or make it succeed. I liked your comment, Ms. Pfleeger, earlier 

when you said that FAST–41 has already enabled us to break 

down—and I will quote you—‘‘agency silos.’’ You mentioned silos, 

and that has been one of the issues, not just with regard to permitting but with regard to other coordination. I think this is a great 

framework to be able to do that. So thank you for your personal 

commitment to this, each of you. And to Ms. Pfleeger, I have told 

you before we appreciate your service and continuing to push hard. 

I do think more certainty and predictability is part of this, and that 

is why we need a permanent Director. 

I want to thank all the witnesses for their testimony. On this 

panel, as you can tell, we have high hopes for this to succeed. We 

have a lot of interest on both sides of the aisle to make this not 

just a law that was important to pass but implementation that is 

actually effective in getting people more opportunity to create more 

jobs, better jobs, not just through the construction of these projects 

but also because these projects will lead to a better economy and 

better wages, better jobs. So it is an exciting opportunity as we are 

beginning to talk about infrastructure. I think it is going to come 

back a lot to, as George Voinovich used to say, because he was 

quoted earlier by my colleague Senator Carper, I have to quote 

him, too, because he is from Ohio. But he used to always say we 

are doing more with less. We are not actually talking about less. 

We are talking about some increases in funding here, and we have 

to do more. We have to figure out how to make that dollar work 

as effectively as possible in our budget-constrained environment. 

So thank you very much for your testimony. We appreciate it. 

Please stay in touch with us. Our team back here is going to do 

some follow up on some of the questions that I asked and some of 

them we did not get to, and we appreciate your responses and look 

forward to continuing to work with you. 

This hearing is now adjourned. 

[Whereupon, at 11:55 a.m., the Subcommittee was adjourned.] 

(41) 

A P P E N D I X 
42 

2 

Let me give you an example: right now, when a project sponsor wants to build a new source for 

hydropower, that sponsor has to brace itself for a permitting process that could last ten years. 

I first got involved in this issue 6 years ago because American Municipal Power came to me to 

talk about their frustration with getting approval on their R.C. Byrd hydropower project on the 

Ohio River. 

I'm glad that Marc Gerken-- the CEO of American Municipal Power, which is the sponsor of 

the R.C. Byrd project-- is here today to explain why it's taken so long to get their project 

permitted, and what the impact has been. 

How many of us are willing to undertake ten years of applications, studies, and uncertainty 

before we even get started building a project? Capital is just not that patient. 

In 2013, Sen. McCaskill and I introduced legislation called the Federal Permitting Improvement 

Act to help streamline the permitting process. In 20 I 5, Congress enacted that legislation as Title 

4 I of the FAST Act now called FAST-41. This bipartisan project with the support of Sen. 

Carper and a 12-1 vote of this Committee was all about making the pcrmitling process more 

efficient and effective. 

We recognize that the permitting process is important-projects should be built in the right way 

that takes care of the environment and follows the law. 

But too often, permitting requirements from different agencies overlap or conflict with each 

other. 

And they lead to delays that hamstring our ability to improve economic growth and job creation. 

Our hope was that FAST-41 would help solve these problems. 

And we weren't the only ones-everyone Ji·om the Chamber of Commerce, to the Natural 

Resources Defense Council, to the Building Trades unions saw that our infrastructure permitting 

process is broken and needs to be fixed. 

All three of those groups arc here today to share their perspectives. We were grateful for their 

critical support in the process and are grateful for their insights today. 

One problem we all identified was a lack of accountability. 

FAST-41 created a process for so-called "covered projects" that assigns one accountable agency 

to serve as the lead agency on each project. 

That agency gets together with all of the other relevant agencies to come up with a permitting 

timetable. 
43 

3 

The agencies have to post that timetable on a Permitting Dashboard, so the project sponsor and 

everyone else can see what these timelincs look like. 

Then, if an agency misses a deadline, it has to explain why. 

FAST -41 also created a Council-the Federal Permitting Improvement Steering Council-that 

sits at the Office of Management and Budget to oversee the permitting process and to help 

resolve conflicts between agencies. 

In my experience, more transparency leads to greater accountability. 

Here, FAST -41 was designed to leverage that accountability to increase efficiency in the 

permitting process. 

As some of you know, I've been concerned about some aspects of its implementation. 

I'd like to touch on three issues: 

First, although the Permitting Council has been making progress recently, I am concerned about 

how long it's taken to get the structure off the ground. 

The Obama Administration failed to appoint an Executive Director for the first six months that 

the Council existed. 

In January, President Obama's Executive Director stepped down during the transition to a new 

administration, and Janet Pfleeger, who has been serving admirably as Acting Executive Director 

and who we'll hear from today, stepped in to fill the gap. 

But we still do not have a permanent Executive Director. 

We've sent suggestions of people who the Administration should consider for the permanent 

role, both from the public and private sectors. 

For the Council to be truly effective and fulfill its mandate, we need a permanent Executive 

Director in place soon, and I know Janet agrees. 

Second, the Council needs sufficient funding. 

The Council currently is funded at $4.5 million. 

The President's budget requested $10 million for its operations, which the Council has indicated 

to us is the minimum amount needed to do the job Congress has given them. 

However, the House budget proposes funding at only $1 million. 
44 

4 

Senate appropriators must fully fund the Council and its efforts for it to function as Congress 

intended. 

Without objection, I will enter into the record a level of service chart from the Council. 

We want to see the Council succeed in its mission to streamline permits and be able to expand to 

improve the process for more projects~~--it needs sufficient funding to accomplish those goals. 

And third, the agencies that sit on the Council need to fully buy into the process and cooperate 

with the Council's goals. 

I appreciated the opportunity address the Council at its first meeting under the new 

Administration. 

I was glad to see broad participation at that meeting, but I conveyed the message there, and I'll 

convey it now: agencies on the Council need to be fully engaged for this process to work. 

The Obama Administration released guidance on its way out the door that said independent 

agencies like the Federal Energy Regulatory Commission and Nuclear Regulatory Commission 

don't have to fully comply with FAST-41. 

But that's not what the law says. 

Independent agencies are expected to fully comply with the law. 

I noticed that Bill Kovacs from the Chamber of Commerce has provided in his written testimony 

a useful chart that examines whether agencies have met their statutory obligations to post 

information to the Dashboard. 

For some agencies, including the Nuclear Regulatory Commission, Housing and Urban 

Development, Agriculture, and Interior, the Chamber assesses that their compliance with their 

statutory obligations has been "minimal at best." 

I'm eager to hear more about that in Mr. Kovacs's testimony today and learn what the 

government witnesses have to say about agency participation on the second panel. 

The goal of this hearing is to determine how we can stretch the federal dollar to get the most 

bang for the buck-how we can rebuild our aging infrastructure, and to do so more efficiently 

and effectively. 

If we do so, it will give an important boost to our economy and lead to more job creation and 

higher wages. 

I'm looking forward to learning how our witnesses think the FAST-41 process is going and what 

it can do to help us achieve those goals. 
45 

Opening Statement of Ranking Member Carper: "Cutting Through the Red Tape: 

Oversight of Federal Infrastructure Permitting and the Federal Permitting Improvement 

Steering Council" 

Mr. Chairman, thank you for holding this hearing today and, especially, for the leadership that 

you and Senator McCaskill have shown on the issue before us. 

One of the many things that you and I agree on is the need for us to invest in our nation's 

infrastructure and put more people to work on projects that will help our economy continue to 

grow, for example, by building and rebuilding our roads, highways, bridges, railroads, and 

airports, as well as deploying broadband in rural parts of America. 

Today's hearing will focus on the work that occurs before we put shovels in the ground to get a 

project started. 

As a longtime member- and now the Ranking Member- of the Environment and Public Works 

Committee, I've thought a lot about how we can build infrastructure projects smarter and more 

cost effectively. I've also thought a lot about how well the rules and permitting processes we 

have in place work, and how they sometimes don't work as well as they could. 

There are times when coordination between the agencies responsible for vetting a project isn't 

done well and projects are delayed without good reason. So rve supported reasonable changes 

designed to improve the permitting process, and done so in both of the last two transportation 

infrastructure laws we've adopted, as well as the last two Water Resources Development Act 

laws. 

One of my top priorities at EPW is to ensure that these initiatives arc implemented fully and 

effectively, while ensuring that we don't cause needless delays in the ultimate implementation of 

the measures that may have been adopted earlier. 

A March 2017 report by the U.S. Department of Transportation's Office oflnspector General 

provides us a cautionary tale about enacting new streamlining measures before the old ones are 

given a chance to work. That report found that some of what we did in the FAST Act- our most 

recent transportation law- may have actually delayed the implementation of some of what we 

did to speed projects along just a few years before in 2012. 

In addition, it's become clear through our work at EPW that there are a number of permitting 

changes included in the last two versions of the Water Resources Development Act that have not 

even begun to be implemented by the Army Corps of Engineers. 

It is critical that the provisions we enact in this area be fully implemented so we can understand 

the impact they'll have before we look to do more. To be able to do that, we need effective 

oversight like we're doing here today. 
46 

That brings me to the main topic we'll be discussing at this hearing, Mr. Chairman- the 

provisions you and Senator McCaskill were able to include in the FAST Act to better coordinate 

agency pennitting activities and improve transparency for certain major infrastructure projects. 

There is clear value in the reforms set in motion by the Portman-McCaskill law and the Federal 

Permitting Improvement Steering Council it created. I look forward to hearing more details 

today about how all of them are working. I'm especially interested in learning about how the 

transparency the new law otTers regarding agency permitting time lines can speed things along, 

and about how the sharing and adoption of best practices for project review can help agencies 

work smarter. 

That said. it's become clear to me in examining the work you and Senator McCaskill have done 

that strong and e!Tcctive senior leadership at the Council and at the agencies responsible for a 

given project is key. It's important, then, that the President appoint a skilled and capable 

permanent Executive Director for the Council who is equipped with the authority necessary to 

push projects through to completion. 

Before we hear from our witnesses, Mr. Chairman, I'd like to briefly make a few additional 

points and then close. 

First, it's important to note that, while we all want permitting decisions to occur quickly, the 

rules and processes we have in place are not just '"red tape." They're intended to help agencies 

make good decisions that protect public health and natural resources. They also ensure that state, 

local, and tribal stakeholders have a say. If this work is well-coordinated, it can improve 

outcomes, reduce costs, and identify potential conflicts early on. A strong Federal Permitting 

Improvement Steering Council can help make sure that happens more often. 

Second, while environmental reviews are often blamed for project delays - and in some cases, 

that's true- studies have shown that projects arc usually held up for other reasons lack of 

capital funding for large projects being chief among them. 

Similarly, limited resources at permitting agencies like EPA and the U.S. Fish and Wildlife 

Service can diminish their ability to engage early and complete their work on time. So we 

should work to ensure that all of the agencies involved in getting infrastructure projects o!Tthe 

ground- including the Federal Permitting Improvement Steering Council- have the resources 

they need to do their jobs well. 

Finally, in closing, Mr. Chairman, I want to congratulate you and Senator McCaskill for the 

bipartisan work that went into the permitting reforms we'll be discussing today. I know how 

difficult it can be to get consensus on these issues. You and Senator McCaskill deserve our 

thanks for authoring legislation that promises to create jobs while building and rebuilding our 

infrastructure more quickly, all with the support of the business community, labor unions, and 

the Obama Administration. 

My thanks again for holding this hearing. T look forward to hearing from our witnesses. 
47 

U.S. Senate Homeland Security and Governmental Affairs Committee 

Permanent Subcommittee on Investigations 

Cutting Through the Red Tape: Oversight of Federal Infrastructure 

Permitting and the Federal Permitting Improvement Steering Council 

Washington D.C. 

September 7, 2017 

Written Testimony of 

Marc S. Gerken, PE, CEO/President, 

American Municipal Power, Inc. (AMP) 
48 

Summary Points 

• American Municipal Power, Inc. (AMP) is the wholesale power supplier and services 

provider for 135 member municipal electric systems in nine states. AMP has a diverse 

generation portfolio, including a mix of fossil and renewable resources. 

• AMP has a unique perspective on infrastructure development and regulatory 

processes as we are in the process of completing the largest development of new runof-the-river hydropower generation in the United States today. Our four projects are 

located at existing U.S. Army Corps of Engineers (USAGE) dams along the Ohio 

River. 

• Hydropower projects are expensive to build and typically begin as above-market 

resources; however, their operational, economic and environmental attributes make 

hydropower a good investment in the long term. 

• Regardless of where in the country you are located, the siting and permitting 

processes for any new generating asset are not for the faint of heart; the licensing and 

permitting processes for hydropower are especially arduous and typically take more 

than a decade. 

• While the Federal Energy Regulatory Commission (FERC) is the lead agency, 

approvals for hydropower developments must come from myriad federal and state 

agencies and require separate permitting by the USAGE and state resource agencies. 

• Licensing for the R.C. Byrd Project, which would be located at the Gallia Locks and 

Dam in Ohio on the Ohio River, began in 2007. A decade later, on August 30, 2017, 

FERC just issued the final license, with the delay largely due to issues raised by the 

USAGE. 

• The R.C. Byrd Project licensing process is part of the initial Federal Permitting 

Improvement Steering Council (FPISC) inventory. To date, our experiences with the 

permitting dashboard and FAST-41 processes have shown improvements in 

timeliness, predictability, and transparency. However, it is critical that these 

improvements continue during the permitting stages. 

• The hydropower licensing and permitting reform legislation that the US Senate and 

House are considering will also improve processes. However, additional steps can be 

taken to: avoid unnecessary studies, establish and recognize best practices, 

coordinate scientific reviews and credit project developers for time lost during 

permitting. 

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49 

Good morning, Chairman Portman, Ranking Member Carper and distinguished members 

of the Subcommittee. My name is Marc Gerken. I am a registered professional civil 

engineer and the Chief Executive Officer of American Municipal Power, Inc. I commend 

you for holding this hearing and I am pleased to have the opportunity to appear before 

you this morning to discuss the importance of reasonable, timely and cost-conscious 

permitting of generation projects, as well as the Federal Permitting Improvement Steering 

Council and FAST-41 process. 

AMP is the non-profit wholesale power supplier and services provider to 135 member 

municipal electric systems in nine states, including the home states of the Chairman and 

Ranking Member. More information on AMP, our assets and operations appears in the 

next section of this written testimony. 

While I am appearing today on behalf of AMP, I am the former Chair of the National 

Hydropower Association (NHA) Board and I currently serve as Co-Chair of the NHA CEO 

Council. I am also the former Chair of the American Public Power Association (APPA) 

Board of Directors. AMP is an active member of both organizations. 

AMP has a unique perspective on infrastructure development and regulatory processes 

as we are in the process of completing the largest development of new run-of-the-river 

hydropower generation in the United States. Our four new projects located in Kentucky 

and West Virginia at existing U.S. Army Corps of Engineers (USACE) dams along the 

Ohio River total more than 300 megawatts (MW) and represent nearly $2.6 billion in 

capital investment, along with an estimated 1,600 direct jobs, more than 1,000 indirect 

jobs, $342 million in payroll and the use of vendors from at least 12 states during 

construction. (Our four new projects join with existing hydropower projects that AMP and 

AMP members own to total more than 600 MW of hydropower in the region.) 

We appreciate the support provided by Senator Portman for our projects, as well as his 

efforts and those of other subcommittee members to pursue balanced regulatory reforms. 

I have been asked to discuss the licensing and permitting process for our remaining 

hydropower project-- the proposed 48 MW R.C. Byrd run-of-the-river hydropower project, 

which would be located in Ohio at the existing USACE Gallia Locks and Dam on the Ohio 

River. The project is one of the 34 projects in the initial FPISC inventory of covered 

projects. This written testimony includes information about AMP, hydropower and our 

infrastructure development experience followed by detailed information on the project, its 

history and my staffs experience with the FPISC process. 

Background on AMP 

AMP is a non-profit wholesale power supplier and service provider for 135 members, 

including 134 member municipal electric systems in the states of Ohio, Pennsylvania, 

Michigan, Virginia, Kentucky, West Virginia, Indiana and Maryland, and the Delaware 

3 
50 

Municipal Electric Corporation, a joint action agency with nine members, headquartered 

in Smyrna, Delaware. These member utilities combined serve more than 650,000 

customers. AMP is based in Ohio and has more than 177 employees at its headquarters 

and generating facilities. The organization is governed by a 21-member Board ofTrustees 

comprised of member community officials. 

AMP's core mission is to be public power's leader in wholesale energy supply and valueadded member services and AMP is one of the largest public power joint action 

organizations in the country. We offer our member municipal electric systems the benefits 

of scale and expertise in providing and managing energy services. AMP's diverse energy 

portfolio makes it a leader in deploying power assets that include a variety of baseload, 

intermediate, and peaking generation, using coal, natural gas, hydropower (our new 

projects .as well as older projects), solar, wind and diesel assets, as well as a robust 

energy efficiency program. 

Last year, the organization sold 16.7 million MWh of energy, with power sales revenue of 

$1.2 billion and total assets of $6.7 billion. In addition to power supply, AMP offers a 

variety of services to its members to assist in their service to their customers, including: 

engineering, financial, environmental, sustainability, generation operations, legal, mutual 

aid coordination, safety training and regulatory support. 

AMP utilizes third-party nationally recognized firms to develop strategic long-term power 

resource plans for each of our members. Our members then use this information as part 

of their local decision-making regarding their power supply planning with respect to 

purchase power agreements and generation project investments. 

We offer our members the opportunity to subscribe to each generation project, providing 

them with an independent feasibility study, beneficial use analysis and market projection 

provided by third-party experts. Members who choose to participate in a project do so 

only after affirmative action by their local governing board and execution of a take-or-pay 

power sales contract. Our projects move forward if we achieve the critical mass of AMP 

member participation required. When projects advance, a committee representing our 

participating member communities is formed to govern major project decisions. 

AMP finances our projects using a mix of tax-exempt and taxable bonds. Since 2000, all 

AMP construction project financing ratings have been in the "A" category and AMP has 

maintained an A1 entity rating from Moody's (the only agency to offer such a rating). 

Because of the importance of tax-exempt financing to our infrastructure projects, we have 

been working in tandem with other state and local government groups to protect this 

essential mechanism in the context of congressional tax reform. 

We also utilized Build America Bonds to finance our hydro and coal investments and New 

Clean Renewable Energy Bonds to finance our hydro investments. Unfortunately, the 

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51 

federal payments promised with these direct pay bonds were subjected to budget 

sequestration, which has resulted in our participating members and their consumers 

losing more than $20 million to date and an estimated $42 million more over the life of the 

sequester. We strongly encourage that this situation be corrected and the sequestration 

of these bonds end in the next budget cycle. 

Our philosophy is not to place all of our eggs in one basket, but to diversify our generation 

resource portfolio to include fossil fuel assets, renewable assets, purchase power 

agreements and energy efficiency so that our members can blend costs and risks. Our 

projects represent fuel, technology and geographic diversity, and will yield a long-term, 

risk-balanced portfolio with predictable rates. We firmly believe this is the best approach. 

Hydro Benefits and Opportunities 

As a public power entity, AMP is unique in our resource planning approach because we 

are able to take a longer view than investor-owned utilities that are subject to quarterly 

profit reports. Our member city, village, town and borough council members have been 

willing to invest in certain projects that will be above market in the early years because of 

the overall benefits in the long term. Our development of hydropower generation is a good 

example- the price of power from these facilities will be above market in the early years, 

competitive in the middle years, and below market in the later years once the debt service 

is paid off. However, when you take into account the many positive attributes associated 

with hydropower, the value of the investment is clear even in the early years. 

Hydropower projects are capital intensive, but have many very attractive qualities, 

including: 

• The ability to provide baseload power (unlike many other renewable resources); 

• Dispatchability (we can forecast the output a day ahead); 

• The ability to provide ancillary services and grid support; 

• No fuel risk (meaning no hedging exposure, no counterparty risk and no 

transportation risk); 

• No waste stream; 

• Low operation and maintenance costs; 

• Reliability; 

• Predictable rates; 

• Limited regulatory risk (once operating); 

• A long life span (80 to 100 years); and 

• No emissions (a sustainable resource and the leading form of renewable energy 

in the country). 

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52 

Hydropower projects can also provide a significant revenue stream to the federal 

government. For instance, AMP's budget for FERC fees for 2018 across our projects is 

in excess of $5 million. Additionally, the USACE receives electricity at no cost from the 

projects for lock and dam operations, which amounts to an additional $900,000 a year 

from our projects. 

Hydropower does have limitations, particularly in our region where the number of existing 

dams and the generation capacity are finite; however, more can still be done with 

hydropower even in our region, and the figures regarding untapped hydropower nationally 

are staggering. 

In July 2016, the Department of Energy (DOE) released "Hydropower Vision: A New 

Chapter for America's 1st Renewable Electricity Source." This analysis found that as of 

the end of 2015, the U.S. hydropower generation fleet included 2,198 active power plants 

with a total capacity of 79.6 GW and 42 pumped storage hydropower (PSH) plants totaling 

21.6 GW, for a total installed capacity of 101 GW. At the beginning of 2014, hydropower 

supported approximately 143,000 jobs in the United States, with 2013 hydropower-related 

expenditures supporting $171.1 billion in capital investment and $5.9 billion in wages paid 

to workers. 

Looking to the future, the analysis predicts that "U.S. hydropower could grow from 101 

gigawatts (GW) of capacity to nearly 150 GW by 2050. Growth under this modeled 

scenario would result from a combination of 13 GW of new hydropower generation 

capacity (upgrades to existing plants, adding power at existing dams and canals, and 

limited development of new stream-reaches), and 36 GW of new pumped storage 

capacity." 

Hydropower resources can play an important role in efficient operation of the grid. 

Hydropower, like natural gas, can be a good partner for balancing resources like wind 

and solar, and can provide ancillary services such as frequency control, regulation, load 

following, spinning reserves and supplemental reserves. Natural gas and some 

hydropower resources have the capability to come online quickly and provide significant 

rotating mass (inertia). Hydro pumped storage is the only widely implemented grid-scale 

energy storage technology. The benefits to the grid are considerable, including deferral 

or avoidance of costly transmission upgrades at a time when the North American Electric 

Reliability Council (NERC) has estimated that 27 percent of grid upgrades are related to 

integrating wind and solar resources. 

Hydropower Licensing and Permitting 

Regardless of where in the country you are located, the siting and permitting processes 

for any new generating asset are not for the faint of heart. The regulatory approval 

process for each type of new generating source presents its own unique challenges. As 

6 
53 

a developer, you must be passionate about the benefits that will result from your project, 

have supportive participants, flexible financing, be open to working with various 

stakeholders, be committed to the project, and willing to tackle the unanticipated 

challenges that present themselves. 

As a developer, you have many challenges and opportunities. One of your key challenges 

is to keep costs down and stay on schedule - escalation can kill even the best project, 

and as the old adage goes, "time is money." The regulatory process plays a critical role 

in a project schedule and ultimately can drive whether or not a project comes to fruition. 

It's important to note that most developers don't enter the regulatory process with 

unreasonable expectations - we understand the need to balance environmental 

protection with economic development, and that there will be some bumps along the road. 

Unfortunately, regulatory timelines don't align efficiently across the numerous required 

permits, various agencies and different jurisdictions - it's not an A to Z process. Across 

our various projects, AMP has worked with dozens of different state and federal regulatory 

bodies throughout the air, water, waste, transmission and siting permitting processes. 

Attachment B is a listing of the various agencies that AMP has worked with during our 

permitting for both fossil fuel and hydro resources. 

Developers must carefully time the required modeling, studies and site assessments 

when preparing their regulatory schedules as some studies have seasonal or weather 

limitations that must be taken into account. For instance, there are only limited months of 

the year when you can perform certain tree clearing work in our region because of the 

migratory habits of the Indiana bat. 

Based on our experience, the timeframe from inception to commercial operation for new 

natural gas combined cycle generation is four to five years - approximately two years of 

which is dedicated to required regulatory permitting approvals, and the remainder to 

siting, contract and equipment vendor negotiation, construction and commissioning. Coal 

and nuclear developments have a much longer timeframe. And, while the development 

timeframe for wind and solar resources is shorter, those projects are not necessarily 

"easier" compared to fossil fuel generation - you still may potentially deal with 

"NIMBYism" and multi-faceted approval processes that can involve both state and federal 

agencies. 

Despite hydropower's many positive attributes, hydropower faces an extremely arduous 

approval process. The time from initial application to final approval from regulatory 

agencies can best be described as a gauntlet, typically taking a decade and costing 

millions of dollars. 

During the FERC licensing process, the public and mandatory conditioning agencies, 

including State and Federal Fish and Wildlife Service (FWS) agencies, are consulted. 

7 
54 

This consultation is to ensure that activities during initial construction and ongoing 

operation are carried out in a manner that safeguards wildlife, including endangered or 

threatened species. In addition, USAGE serves as a mandatory conditioning authority 

under Section 4(e) of the Federal Power Act. The USAGE uses this authority to influence 

the direction and extent of FERC license articles. Through a Memorandum of 

Understanding (MOU) with the USAGE, FERC includes a series of license articles that 

were created to help protect the USAGE navigation interests established in the Rivers 

and Harbors Act of 1899. The articles also include a requirement that the licensee provide 

power for the USAGE dam for the term of the license. 

After the FERC license process has been completed, the USAGE has several regulatory 

approvals that an applicant must obtain to get a final approval to start construction of a 

hydropower project. One of these regulatory processes involves Section 10 of the Rivers 

and Harbors Act, which prohibits unauthorized obstruction or alteration of any navigable 

water without a permit from the USAGE. The USAGE retains its post licensing authority 

under Section 404 of the Clean Water Act, which regulates the discharge of dredged, 

excavated, or fill material in wetlands, streams, rivers, and other U.S. waters. In general, 

to obtain what is termed the "404 permit," applicants must demonstrate that the discharge 

of dredged or fill material will not significantly degrade the nation's waters and that there 

are no practicable alternatives less damaging to the aquatic environment. 

Prior to issuance of the 404 permit, a "408 Approval" must be provided by the USAGE. 

The intent of this approval is to protect government property and ensure the facilities are 

not compromised by other non-federal developments. The Section 408 Approval is 

granted by the USAGE once they complete their evaluation of a project, involving reviews 

of the technical aspects of a project, specifically the water retaining structures and their 

interface with the existing USAGE facilities, as well as completion of a physical hydraulic 

model to verify that a project will not have any detrimental effects on navigation into or 

out of the locks. 

It is interesting to note that the USAGE 408 approval process for run-of-the-river 

hydropower is a new obligation. AMP was the first hydropower developer required by the 

USAGE to obtain a 408 Approval in addition to the 404 permit. Unfortunately, this 

extended our permitting timeframe by roughly to two and a half years for one plant and 

an average of one year across all four new projects. 

USAGE authorizations begin at the District level where the locks and dams are operated, 

but also require approval from the Division, and ultimately from the Director of Civil Works 

from the USAGE Headquarters. In our experience, there is wide variability between the 

District evaluations. For example, some Districts will defer to FERC license-based 

evaluations by the State Preservation Office for cultural impacts, and state and federal 

FWS agencies for issues within their areas of expertise. However, another District will 

8 
55 

conduct a repetitive evaluation of these same criteria and reach different conclusions. In 

the case of R.C. Byrd, the USACE responded to FERC's Environmental Assessment (EA) 

by stating that the USACE would pursue the same issues they raised, but that FERC 

determined should not be included in the EA, to their satisfaction through their subsequent 

permit process. As such, for planning purposes, it is assumed that the issuance of the 

408 Approval and 404 Permit will take anywhere from 12 to 36 months after issuance of 

the FERC license in spite of many of the issues having already been resolved by FERC. 

This method of permitting costs licensees millions of dollars in capitalized interest. 

Extended permitting timeframes and redundant review of issues has caused AMP to not 

award supply contracts until after permits are issued, which results in longer construction 

schedules and increased costs. For our recent hydropower projects, AMP had to delay 

financing at significant cost to members. By a point of comparison, we estimate that we 

lost 50 basis points for financing our hydro projects when compared to our financing for 

our investment in the Prairie State Generating Company over a six month period. This 

was a direct result of uncertainty associated with USACE permitting. 

Our Willow Island project located in West Virginia provides an example of the challenges 

that developers face when undertaking significant infrastructure projects and how those 

challenges can result in delays. In order for AMP to gain approval for the USACE's 

Section 408 and 404 permits, the USACE required AMP to perform more than $1.5 million 

in archaeological work at the powerhouse site adjacent to the dam in a location where the 

USACE had itself previously re-routed a creek, excavated and filled over known 

archaeological sites. From 2008 to 2011, AMP was required to undertake three 

progressively more expensive and elaborate archaeological investigations that involved 

probes, test pits, more than 24 backhoe trenches and finally full excavation of bones, 

mussel shells and charcoal pieces that were sent to labs for further evaluation. All of the 

required work was justified by the USACE as necessary to address research questions 

regarding the nature of 2,000-3,000-year-old settlement patterns in the area; however, 

the items found were common along this stretch of the Ohio River, which is a known 

artifact area. 

In addition to the FERC license and the USACE's Section 408 and 404 permit processes, 

the Environmental Protection Agency (EPA), through the states, requires a 401 Water 

Quality Permit under the Clean Water Act (CWA). The intent of the 401 Permit is to 

provide for the protection of the physical, chemical, and biological integrity of water 

bodies. 

A developer must have significant capital (millions of dollars in many cases) to cover the 

cost of the hydropower project through permitting, including: subsurface core drilling, 

hydraulic model studies, design and initial payments for equipment with long lead times. 

9 
56 

Long-term financing is unlikely until a developer has all of the required permits in hand, 

which can drive both the timing of the access to the market and the cost of money. 

R.C. Byrd and FAST-41 

In 2007, AMP decided to pursue a license for a 48 MW hydropower plant at the R.C. Byrd 

(Gallia) Locks and Dam on behalf of the AMP member community of Wadsworth, Ohio 

(the licensee) for potential subscription to interested AMP members. 

In April 2007, a Preliminary Permit Application (PPA) was filed with FERC by Wadsworth, 

effectively beginning the process. Meetings were held with the USACE to review the 

project and plans in November 2008 at the project site with several USACE staff providing 

input on the project concepts. Attachment A is a detailed timeline of the regulatory 

process to date for FERC Project No. 12796. 

Based on those early engagements and input from the USACE, a proposed project 

concept was developed. In June 2009, AMP filed with FERC (and served copies to the 

USACE's Huntington District) the Notice of Intent and Preliminary Application Document 

(PAD). This action initiated the more formal process and provided an opportunity for 

agencies to express their concerns and comment on likely conditions. In theory, this 

establishes a pathway and transparency for an applicant that will ultimately be seeking 

USACE 404 and 408 permits, as well as operating agreement approvals later in the 

approval process. 

In October 2009, AMP held a joint regulatory agency and public meeting regarding the 

proposed project. In June 2010, AMP met with West Virginia DNR (WVDNR), Ohio DNR 

(ODNR), USACE, USFWS, and two consultants to discuss specific project studies and 

surveys that would meet agency needs. 

By November 2010, the studies were completed and submitted to various state and 

federal agencies for review along with AMP's draft FERC License Application. Comments 

were solicited from all agencies and stakeholders on the full project proposal including 

protection, mitigation and enhancement measures. Based on those comments, AMP 

adjusted its proposed project development plan and submitted its final FERC license 

application in March 2011. 

Shortly after the filing of the final license application in 2011, FERC arranged for the 

USACE, specifically the Huntington District, to be a cooperating agency in developing the 

National Environmental Policy Act (NEPA) environmental assessment for the Project in 

order to avoid multiple NEPA documents being needed. 

Due to the location of the proposed plant, in 2008 and 2009 AMP also met with the Ohio 

Department of Transportation (ODOT) regarding the need to relocate State Highway 7. 

By September 2010, AMP had worked with ODOT on a clear process to design a 

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57 

compliant highway relocation. From 2008 through 2012, AMP held several meetings with 

local land-owners who were generally supportive of the project going forward. 

Approximately 35 property owners would be directly affected by the relocation of State 

Highway 7. 

In February 2012, FERG provided formal notice that the application was complete and 

ready for its NEPA analysis and requested terms and conditions from resource agencies. 

In March 2012, FERG held a public scoping meeting with all of the necessary state and 

federal agencies to identify any additional studies or information that was needed. 

In December 2012, the USFWS, WVDNR and ODNR provided their comments and terms 

and conditions on the final licensing proposal. FERG worked with the federal and state 

agencies to incorporate necessary conditions into the draft EA and issued it on July 8, 

2014. 

From the point of the initial regulatory scoping process, five years had been spent on 

permitting this project. But that was the easy part. From this point on, the process slowed 

down significantly. The USAGE expressed additional concerns over mussels and the 

impact of the project on dredging that the USAGE does downstream of the dam. The 

USAGE continued to raise concerns, including new concerns not previously identified, 

which appeared to be an intentional effort to prevent the project from proceeding. As an 

example, after working with FERG to draft the EA issued July 8, 2014, an additional 38 

pages of comments that needed to be addressed were submitted on August 7, 2014 by 

USAGE. A subsequent revised version reduced the length to 25 pages. FERG issued a 

final EA for the project on January 23, 2015. 

The USAGE has repeatedly taken the position that any comments not resolved by FERG 

or AMP to the USAGE's satisfaction will have to be addressed in their 408 and 404 

permits, which are obtained after the FERG license is issued. This position has been 

reiterated on several occasions, including a letter dated January 22, 2015. In June 2015, 

FERG held a conference call with all affected state and federal agencies. During that call, 

USAGE staff's persistent skepticism of conclusions in FERG's draft and final EA resulted 

in what appeared to be frustrated FERG staff abruptly ending the call. 

Much of 2016 was spent gathering and submitting additional information to FERG in an 

attempt to address USFWS and USAGE comments. During this time, USFWS continued 

their evaluation of whether the project would impact endangered species, including 

freshwater mussel species and the Northern Long Eared Bat. Through a lengthy 

exchange, concurrence was reached between FERG and USFWS (which has both the 

statutory responsibility and technical expertise on Endangered Species Act 

determinations) that the project would not likely jeopardize endangered mussels or bats 

and the final Biological Opinion (BO) was issued by the USFWS in June of 2017. Due to 

disagreements with FERG's conclusions, USAGE withdrew support of FERG's 

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58 

determination and explained that USACE would address the same issues through the 

404 and 408 permit process to their satisfaction. In late August, FERC issued the final 

programmatic agreement for cultural resources management 

FERC issued the license on August 30, 2017 and AMP was reviewing the license 

conditions at the time of finalizing this testimony. The next steps will be for AMP to begin 

implementing the license requirements and subsequently pursue 404 and 408 permits 

from the USACE. 

AMP's economic commitment to this project now exceeds $4 million. 

I understand that the FAST-41 effort originated with the Fixing America's Surface 

Transportation (FAST) Act which was signed into law on December 4, 2015. Title 41 of 

the FAST Act (FAST -41) was designed to improve the timeliness, predictability, and 

transparency of the federal environmental review and authorization process for covered 

infrastructure projects. 

The Federal Permitting Improvement Steering Council (FPISC) as authorized, is 

composed of agency Deputy Secretary-level members and chaired by an Executive 

Director appointed by the President FAST -41 established new procedures that 

standardize interagency consultation and coordination practices. 

Along with other provisions to address the project delivery process and track 

environmental review and project milestones, the Permitting Dashboard was codified into 

law to track project timelines, and increase transparency, predictability and accountability. 

However, participation by agency stakeholders is voluntary and state agencies are 

currently not participants. 

Other goals of the Permitting Dashboard are to improve early coordination of schedules 

for environmental reviews and to identify inter-agency disputes and delays in the 

permitting process. 

AMP's experience with the FAST-41 process began on September 22, 2016, when RC. 

Byrd was included as one of the 34 projects in the FPISC inventory of covered projects. 

In early 2017, AMP staff participated in two conference calls to educate and familiarize 

FAST-41 staff with hydropower permitting and explain specific challenges associated with 

RC. Byrd. We also exchanged information with Senate staff who were following the 

process. 

At that point, progress on the project was at a standstill due to a disagreement about the 

necessary timing of a Physical Hydraulic Model Study, estimated to cost $1-$2 million. 

USFWS and USACE requested that AMP complete the full hydraulic study prior to 

receiving the FERC license. AMP agreed to perform the study post-license but has been 

unwilling and unable to do so pre-licensing, as it would put the study cost at risk if the 

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59 

project did not proceed. As an alternative to performing the full study prior to license 

issuance, AMP provided as much detail as possible, recognizing that this project was 

notably similar to our other recent projects. As noted in a FERC letter, the impasse 

resulted in USFWS's inability to draw a conclusion on whether the project would adversely 

affect mussels and bats. 

Shortly after our communications with FAST-41, FERC issued a letter explaining its EA 

to USFWS and requesting concurrence within 30 days from the date of receipt of the 

letter. Notably, FERC also indicated that FERC would take failure to respond as 

concurrence that FERC had met its responsibilities and would resolve the matter. 

Consequently, USFWS concurred and issued a final Biological Opinion on June 19,2017. 

As noted above, the final license was received on August 30, 2017, and is under review 

by AMP. 

While the FAST-41 Committee has released permit and license processing guidance and 

successfully developed and continues to maintain the Permitting Dashboard, our 

experience places the value of FAST-41 on: (1) agency accountability through making 

agency actions and timeliness highly visible; and (2) the ability to informally resolve 

longstanding disputes and shepherd permits/licenses to completion. To that end, we are 

thankful for the assistance we received to break a log jam and encourage the committee 

to continue its efforts. 

It's important to note that in the case of hydropower projects, it will be especially important 

that the FIPSC process continue into the permitting phase. 

We are also curious about how the process will accommodate a heavier workload when 

the initial stages are broadened. 

Process Improvements 

When pursuing authorization for a new hydropower plant or even a renewal of existing 

permits and licenses, the general industry recommendation is to start 10 years in advance 

and estimate several million dollars. While the process may ultimately be completed 

sooner and less costly, this is the general starting point/rule of thumb. These initial 

investment costs are considered at-risk developmental dollars due to the unknown nature 

of potential opposition or concerns and resulting project terms and conditions. 

The time and cost alone are a significant impediment to new hydropower development, 

especially in the face of other competitive generation options. While FERC has exclusive 

authority to issue licenses, other federal and state agencies, including USAGE, both 

interface with the FERC process and conduct separate duplicative regulatory evaluations 

and permitting processes. As you know, each agency operates using their own respective 

guidance documents and regulations. 

13 
60 

Unfortunately, there is no silver bullet to streamlining and accelerating the license and 

permit approval labyrinth. Although the shared goal of DOE, USACE, FERC and private 

developers as outlined in the Hydrovision Report highlights the substantial domestic 

energy generation potential that remains untapped within the United States, the 

regulatory process has negatively impacted the ability to execute this goal. 

As with many complicated processes, I firmly believe that a multi-pronged approach is 

necessary to ensure that as many of the nuanced challenges are addressed as possible. 

AMP is supportive of the hydropower reform legislation that has been enacted by 

Congress over the past few sessions, as well as the pending legislation that would 

streamline processes. We also appreciate the Trump Administration's efforts on 

regulatory reform. 

Improving the federal process is perhaps the most tangible approach within reach. 

Thankfully, streamlining the federal hydropower licensing process enjoys both bipartisan 

and bicameral support. A key feature of S. 1460, the Energy and Natural Resources Act 

of 2017, would designate FERC as the lead agency for all environmental reviews, 

authorize FERC to set a schedule for all permitting, enable FERC to incentivize additional 

environmental improvements during the licensing term, and streamline the process for 

license amendments to enable efficiency improvements and capacity additions at existing 

projects. Companion hydropower licensing reforms are contained in stand-alone 

legislation in the House. S. 1460 is awaiting action by the full Senate. 

These are profound changes that will have a direct impact; however, more can be done 

to help streamline the process and eliminate overlapping reviews to make the process 

more predictable and economically viable. The following are suggestions based on our 

experience: 

• Identify administrative policies that add cost and time to the license process with 

limited or no benefit. As an example, one mandatory conditioning agency follows 

an internal policy of not recognizing scientific studies if they are greater than five 

years old. While the intent of the policy may have been innocent, in practice, this 

policy can require costly studies without sound scientific justification. 

• Ensure that every decision and requirement is based on sound, established 

science that is included in the respective determination. As an example, water 

quality monitoring and fish mortality studies are inconsistently applied across 

practically identical plants. Turbines that have been previously studied and 

accepted by a mandatory conditioning agency to result in low fish mortality should 

not need to repeat these studies. Similarly, once a specific technology is 

demonstrated to not impact water quality, the need for continual monitoring should 

be retired. It's our understanding that one agency, through written guidance, has 

been instructed to require water quality monitoring in licenses or permits simply so 

14 
61 

that agency need not do so themselves. The cost and requirement even continues 

after the developer establishes no impact on the sample parameter. 

• Treat similar projects in an identical manner to the extent possible. Through shared 

learning between Districts or Field Offices, this approach would provide 

predictability for developers that similar projects, regardless of the owner, could be 

used as templates for subsequent projects, regardless of location. 

• Agencies should allow licensees more flexibility in using offsite mitigation (e.g. 

mitigation banks) of measures commensurate with anticipated impacts. This minor 

change is an excellent example of a win-win for both the threatened or endangered 

species and the developer. 

• Eliminate duplicative reviews by preventing alternative agencies from formally or 

informally contributing to the decision-making process that is outside of their 

authority and expertise. This would provide developers with increased 

predictability, reduce time, and reduce cost. We have experienced this duplicative 

review first hand due to the location of our hydropower plants in different USACE 

Districts. While one USACE District defers to the appropriate federal and state 

agencies specifically mandated to assess a project's impact on cultural and 

endangered species, projects located within the boundaries of a different District 

experience a duplicative, time-consuming, costly and onerous evaluation 

conducted by the District itself. 

• Reform the culture regarding how USACE and civilian staff interact with developers 

during the process. 

• Allow FERC to extend license terms for a period not to exceed 50 years from the 

start of construction for projects that are proceeding. 

• Require the USACE to develop concurrent reviews between its District, Division 

and Headquarters by forming joint review teams from differing disciplines so that 

each review captures all comments in one coherent review. 

For the improvements outlined above to be effective, a paradigm shift within federal and 

state agencies is necessary. There must be a focus on providing customer service, 

helping applicants comply and developing innovative solutions. 

Conclusion 

In closing, I want to stress my strong belief in the great opportunity that hydropower 

presents for this country. As a generating resource, hydropower provides baseload, 

reliable, low-cost power. In addition, as a qualified renewable energy resource, it provides 

emissions-free power with an exceptionally long generating life approaching 100 years. 

15 
62 

Hydropower plays an important role in AMP's efforts, and we are encouraged by the 

increasing recognition by policymakers of the untapped potential for new and enhanced 

hydropower development in the United States. The commitments of AMP and its member 

communities serve as evidence that hydropower is recognized as a desirable and 

beneficial contribution to those seeking to embrace a diverse resource portfolio. 

Despite hydropower's attributes, the process to obtain authorization for a hydropower 

plant is challenging. As evidenced in AMP's pursuit of necessary licenses and permits 

for our multiple hydropower projects, there is room for improvement throughout the 

process. The FAST-41 effort to increase transparency, predictability and accountability 

has already made a notable impact on the R.C. Byrd project. 

Active legislation in the House and Senate will have a positive impact on the development 

of hydropower infrastructure, especially if coupled with additional changes outlined by 

AMP in this testimony, as well as ideas proposed by the NHA 

To facilitate this development and to ensure that new resources of all types can 

economically and timely be brought online, it's important that regulatory processes be 

streamlined to eliminate redundancies and provide developers and investors with added 

certainty. 

Thank you again for holding this hearing and providing me with the opportunity to appear 

before you today. I would be happy to respond to any questions. 

16 
63 

LIST OF PERMJTS/APFROVAL!LICENSES/EVALUA TIONS-·FOSSIL 

OPSB Certificate Ohio Power Siting 

Section 404/10 Army Corp:; 

Section 40 I OEP A 

Permit to Install-water OEPA 

Permit to Install-sanitary OEPA 

Water withdrawal rcgistrationODNR 

NPDES EPA/OEPA 

Stormwater Permit OEPA 

Permit to Install-Air EPA/OEPA 

Title V Operating-Air EPA/OEPA 

Solid Waste Permit to !nsmll OEPA 

Hazardous Waste Permit 

Historic Preservation 

Endangered Species EvaL 

License 

ODOT Permit 

EPA/OEPA 

SHPO 

ODNR/VSF&W 

FAA 

ODOT 

Certificates for 50MW+ projects and T-line 

Impacts to jurisdictional water 

Impacts to wetlands/streams 

Build sourcc(s) of water discharge 

On-site sanitary water discharge 

Withdrawal of water 

Discharge of' industrial water 

Manage site/construction stormwatcr 

Installation of air emission souree(s) 

Operation of air cmis~ion source(s) 

Management of solid waste (ash etc) 

Management of Haz. Waste 

Evaluation of cultural/historic resources 

Evaluation of endangered/threatened species 

Stack height approval for aviation 

Roadway con~iderations/crossings 

LIST OF PER!VHTS/APPROVJ\L/UCE~SES!EYALUA TIONS··HYDRO 

OPSB Certificate 

Preliminary Permit 

License 

NEPA 

Section 404/ I 0 

Section408 

Section 401 

Ohio Power Siting 

FERC 

FERC 

EPA 

ArmyCmps 

Army Corps 

OEPA 

Water withdrawal registrationODNR 

NPDES EPA/OEPA 

Storrnwater Permit OEPA 

Historic Preserv. Act SHPO 

Endangered Species Eval. ODNR/USF&W 

License FAA 

ODOT Permit ODOT 

Flood Impact Approval FEMA 

Ccriilleates hJr 50MW+ projects and T-line 

Permit to prepare and submit a License App. 

Comprehensive energy project license 

Compliance with statute on federal projects 

Impacts to jurisdictiona 1 water 

Permission to impair federal structure 

Impacts to wellamls/strearns 

\\'ithdra\val of water 

Discharge of industrial water 

lVlanage site/construction stormwater 

Evaluation of cultural/historic n~sources 

Evaluation (lf endangered/threatened species 

Transmi;;sion Tower approval for aviation 

Roadway considerations/crossings 

To insures no impacts to flood waters 

OTHER REQUIRED/POTENTIAL CONSULTING AGENCIES 

U.S Dept. of Ab>riculture-Forestry 

National Park Service 

U.S. Bureau of Land Management 

Federal Emergency tvlanagement Agency 

U.S. Geological Service;; 

U.S. Department of Commerce 

OTHER REQUIREMENT 

Regional Transmission Organization Interconnection Process (more than 20 MW)- PJ!v1 or 

MISO in our region 
64 

North America's Building Trades Unions 

Statement of Brent Booker 

Secretary-Treasurer, North America's Building Trades Unions 

Before the 

Permanent Subcommittee on Investigations 

Committee on Homeland Security and Government Affairs 

United States Senate 

Hearing on 

Cutting Through Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council 

September 7, 2017 
65 

Good morning. Chairman Portman, Ranking Member Carper and distinguished members of this 

subcommittee: 

My name is Brent Booker, Secretary-Treasurer of North America's Building Trades Unions 

(NABTU), and on behalf of the nearly three million construction workers in North America that T 

am proud to represent. I would like to thank you for allowing me to testify before this 

subcommittee on an issue that directly impacts building and construction trades men and women 

across America: permitting reform. 

America's labor leaders and businesses agree: the permitting process for major U.S. infrastructure 

projects must be modernized to make it more et1icient, more accountable and more transparent 

These projects employ hundreds of thousands of building trades members. and the sooner projects 

can break ground. the sooner our members can get to work applying their crafts and providing for 

their families. 

Chairman Portman. your work and leadership along with Senator McCaskill on the Federal 

Permitting Improvement Act demonstrated a steadfast commitment to cutting red tape in order to 

get much needed infi·astructure projects moving forward. NABTU, and in fact the entire building 

trades community, is extremely grateful that these efforts resulted in Title 41 of the FAST Act 

(FAST-41), which will greatly streamline the federal permitting process, leading to more job 

opportunities for construction workers across the country. 
66 

We are pleased that permitting reform is an issue on which there is a bipartisan recognition that 

steps must be taken to address the inequities in the process. In fact, in Road .Alap to Renewal: 

Invest in Our Future, Build on Our Strengths, Plav to Win, it was President Obama's Jobs Council 

found that an unnecessarily complex federal permitting process is a major barrier to capital 

investment and job creation. They also found that other countries expedite the approval of large 

projects better than the United States. 

The general problem with the permitting process is this: project owners, whether it is the public or 

private sector, oftentimes find the federal permitting process to be overly burdensome, slow and 

inconsistent. Gaining approval for a new bridge or factory typically involves negotiating a complex 

maze of review by multiple federal agencies with overlapping jurisdictions and no real deadlines. 

Often, no single federal entity is responsible for managing the process. Even after a project has 

cleared extensive review and a permit is granted, lawsuits and judicial intervention can stymie 

effective approval for years - or, worse, halt a half-completed construction project in its tracks. 

By some estimates, a six-year delay in starting construction on public works, including the effects 

of unnecessary pollution and prolonged inefficiencies, costs the nation over $3.7 trillioni. 

The reforms instituted in FAST-41 are designed to take steps to rectify this problem. We believe 

the creation of the Federal Permitting Improvement Council is a long-overdue step in the right 

direction. We believe the new procedures set forth in FAST-41 to standardize interagency 

coordination and consultation will ultimately lead us toward the better coordination among 

agencies and deadline setting that has been lacking in the permitting process and frustrating 
67 

construction owners, contractors, and workers for years. As an organization that relies upon 

standards. we welcome this. 

Furthermore, by tightening litigation timeft·ames surrounding permitting decisions, major 

infrastructure projects will no longer be subject to the seemingly never-ending cycle of lawsuits 

project opponents advocate. 

On this point I want to be very clear: North America's Building Trades Unions support responsible 

regulations that protect the environment, public health and worker safety. W c believe they are 

critical to responsible infrastructure development that lasts for decades and allows for future 

generations to use these invaluable assets. What we are opposed to is the constant stream of 

endless lawsuits that project opponents rely upon because they cannot defeat a project on the merits 

of the project itself. When projects are tied up in the courts, our members are not working, they 

are not putting food on the table, and they are not proving for their families. 

The enhanced transparency resulting from the Federal Infrastructure Permitting Dashboard is also 

a welcome development in the construction industry. We believe displaying project timelines and 

providing important and detailed information on each project on such a public forum will bring 

about increased accountability to government agencies involved in the permitting process and will 

allow for the general public to access information that will inform their understanding and 

appreciation of the impact of these projects on their communities 
68 

One such project currently listed on the Dashboard that will employ building trades members is 

the Atlantic Coast Pipeline, a vitally important inl\-astructure project that will ensure the economic 

vitality, environmental health and energy security of the Mid-Atlantic region. 

The Federal Energy Regulatory Commission (FERC) is the lead federal agency responsible for 

overseeing the environmental review and approval process for this project. In coordination with 

more than a dozen other local, state and federal agencies, FERC will conduct a thorough and 

exhaustive review to evaluate all potential environmental, cultural, socioeconomic and other 

impacts of the project. Throughout this lengthy process, FERC and other agencies will carefully 

analyze all potential impacts to the land, air and water quality, wildlife and other resources to 

ensure the project has adopted all necessary measures to protect the environment, landowners and 

public safety. 

The environmental review process provides numerous opportunities for the public to provide 

meaningful input to the agencies, including more than two dozen public meetings and multiple 

public comment periods. Over the last two years, the FERC has received more than 35,000 public 

comments from landowners, residents, businesses and organizations in communities across the 

region. 

Given NABTU's direct benefit in advancing the Atlantic Coast Pipeline, hundreds of our affiliate 

union members have provided first-hand accounts of their views on the economic impacts of this 

project. Pipeline construction alone will create 17,000 new jobs and $2.7 billion in economic 
69 

activity across the region. From construction subcontractors and equipment suppliers to hotels and 

restaurants, construction will provide a major boost to local businesses in every community. 

The Atlantic Coast Pipeline will be an energy provider, job creator and economic game changer 

for the region. This underground natural gas transmission pipeline will transport domesticallyproduced, clean-burning natural gas from West Virginia to communities in Virginia and North 

Carolina that lack the infrastructure needed to generate cleaner electricity, heat homes and power 

new industries. Along the way, the pipeline will help the region lower emissions, improve air 

quality, grow local economies and create thousands of new jobs in manufacturing and other 

industries. Projects such as this one are exactly the type of major infrastructure permitting reform 

moves forward. 

North America's Building Trades Unions were so strongly in support of the FAST-41 reforms 

because they lead us toward a path of standardization and finality in decision making. If a project 

is approved, we will compete for the work. If a project is denied, we will move on to the next 

project and look for other opportunities for our members to apply their crafts. With that, I once 

again thank the committee for this opportunity, and look forward to your questions. 

'Two Years Not Ten Years: Redesigning Infrastructure Approvals. Common Good. Web. Accessed 12/7/15. 

(http://commongood.3cdn.netic6l3b4cfda258a5fcb e8m6b5t3>..pdt) 
70 

Statement of the U.S. Chamber of Commerce 

ON: HEARING ON "Cutting Through the Red Tape: Oversight 

of Federal Infrastructure Permitting and the Federal 

Permitting Improvement Steering Council" 

TO: U.S. SENATE COMMITTEE ON HOMELAND SECURITY 

AND GOVERNMENTAL AFFAIRS' PERMANENT 

SUBCOMMITTEE ON INVESTIGATIONS 

DATE: September 7, 2017 

1615 H Street NW I Washington, DC I 20062 

The Chamber's mission ls to advance human progress through an economic, 

po!itica! and social system based on indlvidua! freedom, 

incentive, inltlative, opportunity and responsibi!lty. 
71 

The U.S. Chamber of Commerce is the world's largest business federation 

representing the interests of more than 3 million businesses of all sizes, sectors, 

and regions, as well as state and local chambers and industry associations. The 

Chamber is dedicated to promoting, protecting, and defending America's ii·ee 

enterprise system. 

More than 96% of Chamber member companies have fewer than I 00 

employees, and many of the nation's largest companies arc also active members. 

We are therefore cognizant not only of the challenges facing smaller businesses, 

but also those facing the business community at large. 

Besides representing a cross-section of the American business community 

with respect to the number of employees, major classifications of Ameli can 

business-e.g., manufacturing, retailing, services, construction, wholesalers, and 

finance-are represented. The Chamber has membership in all 50 states. 

The Chamber's intcmational reach is substantial as well. We believe that 

global interdependence provides opportunities, not threats. In addition to the 

American Chambers of Commerce abroad, an increasing number of our members 

engage in the expot1 and imp011 of both goods and services and have ongoing 

investment activities. The Chamber favors strengthened intemational 

competitiveness and opposes artificial U.S. and foreign barriers to intemational 

business. 

2 
72 

BEFORE THE U.S. SENATE COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS' PERMANENT SUBCOMMITTEE ON 

INVESTIGATIONS 

Hearing on "Cutting Through the Red Tape: Oversight of Federal Infrastructure 

Permitting and the Federal Permitting Improvement Steering Council" 

Testimony of William L. Kovacs 

Senior Vice President, Environment, Technology & Regulatory Affairs 

September 7, 2017 

Good morning, Chairman Portman, Ranking Member Carper, and distinguished members 

of the Senate Permanent Subcommittee on Investigations. My name is William L. Kovacs and I 

am Senior Vice President for Environment, Technology and Regulatory Affairs at the U.S. 

Chamber of Commerce. The Chamber greatly appreciates the Committee's interest in the vital 

issue of federal permit streamlining and for the work it did during the 114'11 Congress that lead to 

passage of very clear, well-structured legislation that was incorporated as Title 41 of the Fixing 

America's Surface Transportation Act. It is now referred to as FAST-41. 

My statement details the Chamber's strong support for the federal permit streamlining 

provisions in FAST -41, which was signed into law in December 2015, and for the speedy and 

effective implementation ofthose provisions. FAST-41 had strong leadership from its original 

co-sponsors Senators Portman and McCaskill and Chairman Johnson, and bipartisan support 

demonstrated by the prior administration's immediate implementation of the statute. FAST-41 is 

increasingly important as the new administration has committed to getting more infrastructure 

built. FAST-41 is a workable statutory design, it has a structure in place to review and 

streamline the approval of environmental reviews, and it has 35 projects listed on its Dashboard. 

If this nation truly wants to improve, in a timely manner, the nation's infrastructure it needs to 

immediately utilize the F AST-41 process. 1 

I. BACKGROUND 

As you may know the U.S. Chamber's strong interest in permit streamlining dates back to 

the 2009 debate over the American Recovery and Reinvestment Act ("The Recovery Act") when 

the Obama administration was proposing to fund all "shovel ready projects". The Chamber 

called attention to the fact that there were few, if any, such projects due to the nation having a 

flawed permitting process that operated without time-constraints. 

During the debate on the Recovery Act Senators Barrasso and Boxer recognized the 

flaws in the permitting process and worked together to secure an amendment to the Recovery 

Act requiring the National Environmental Policy Act ("NEPA") process be implemented to 

require that environmental reviews be conducted "on an expeditious basis" (i.e. that the shortest 

existing applicable process be used). The Barrasso- Boxer amendment was enacted into law and 

according to Council on Environmental Quality ("CEQ") data, out of the 192,707 NEPA 

environmental reviews conducted on Recovery Act projects, 184,733 were satisfied through the 

1 FAST~41 adopted most of the provisions of S. 280, the Federal Permitting Improvement A~t of2015. 

3 
73 

use of categorical exclusions. Only 841 required an Environmental Impact Statement ("EIS"), 

the longest process under NEPA. 

After passage of the Recovery Act the U.S. Chamber continued its interest in permit 

streamlining by unde1taking an extensive study of the difficulties inherent in completing the 

environmental reviews needed to secure federal permits for constructing projects. In 2010 the 

Chamber published its "Project- No- Project" report which identified 351 energy projects 

across the nation that were stalled due to the many challenges made under the Federal 

government's environmental review process. The stalled projects, if permitted, would have 

produced a direct investment totaling $577 billion at a time when the economy desperately 

needed investment. The report estimated that this $577 billion direct investment would have 

generated a $1.1 trillion short term boost to the economy and created 1.9 million jobs annually 

during the projected seven years of construction. The report became an important resource used 

by both houses of Congress to develop legislation to address the long permitting delays. 

In 2012 the House introduced H.R. 4377, "Responsibly and Professionally Invigorating 

Development Act" ("RAPID Act") to streamline the nation's environmental review process. In 

2013, the Senate introduced S. 1397, the "Federal Permitting Improvement Act". While the 

House passed RAPID in both the 113111 and 114'11 Congresses, the Senate did not address the issue 

until the 114'11 Congress when it was then able to incorporate its version of permit streamlining, 

the "Federal Permitting Improvement Act", as Title 41 of the FAST Act which was signed into 

law on December 4, 2015 by President Obama. 

The enactment off AST-41 was the first time since the passage of a 1969 federal law 

requiring environmental reviews of major infi·astructure projects having federal involvement, 

that a structure was established for the management coordination, timing and transparency of the 

environmental review process for such projects. 

FAST-41 establishes the multi-agency Federal Permitting Improvement Steering Council 

("FPISC"), chaired by an Executive Director, and establishes a process which involves 

designation of a lead agency; schedules for projects; coordination between agencies and states 

when applicable; dispute resolution mechanisms; and judicial review. Project sponsors must seek 

authorization as a "covered project" to gain access to the process and the Executive Director 

makes the final determination that a project meets the criteria of a "covered project."2 

A significant part of the text ofFAST-41 originated in the Senate asS. 280; the 2015 

version of the Federal Permitting Improvement Act which was developed by this Committee. 

The permit streamlining provisions of FAST-41 bring greater etliciency, transparency, and 

accountability to the federal permitting review process. Its coverage is very broad including 

renewable energy production, conventional energy production, electricity transmission, aviation, 

surlace transportation, ports and waterways, water resource projects, broadband, pipelines, 

manufacturing, or any other sector as determined by a majority vote of the FPISC.3 Bringing 

better coordination and predictability to the permitting process should translate into job creation, 

economic growth, and new development. Some of the key provisions of FAST -41 include: 

2 See 42 U.S.C. ~ 4370m. The definition of"cnvered project" permits FPISC by majority vote to expand lhe list of covered 

projects if it detem1ines thnt other set:tors meet the stated criteria. 3 !d. at§ 4370m(6)(A). 

4 
74 

Establishing a permitting timetable, including intermediate and final completion dates for 

covered projects, i.e. those over $200 million or subject to multiple agency environmental 

review requirements so they will benefit from enhanced coordination; 

• Designation of a Lead Agency to coordinate responsibilities among multiple agencies 

involved in project reviews to ensure that "the trains run on time;" 

• Providing for concurrent reviews by agencies, rather than sequential reviews; 

• Allowing state-level environmental reviews to be used where the state has done a 

competent job, thereby avoiding needless duplication of state work by federal reviewers; 

Requiring that agencies involve themselves in the process early and comment early, 

avoiding eleventh-hour objections that can restmi the entire review timetable; 

• Establishing a reasonable process for determining the scope of project alternatives, so 

that the environmental review does not devolve into an endless quest to evaluate 

infeasible alternatives; 

• Creating a searchable, online "dashboard" to track the status of projects during the 

environmental review and permitting process; 

• Reducing the statute oflimitations to challenge a project review !Tom six years to two 

years; and 

• Requiring courts, when addressing requests for injunctions to stop covered projects, to 

consider the potential negative impacts on job creation if the injunction is granted. 

While there have been permit streamlining provisions for specific activities, this is the 

first time there has been any type of comprehensive structure that coordinates the environmental 

review process for large infrastructure projects throughout the nation, both public and private. 

II. PERMIT STREAMLINING UNDER FAST-41 

Building upon the cornerstones of coordination, transparency, and accountability, FAST41 provides a framework for a more streamlined and effective review and permitting process for 

major infrastructure projects. A "covered project'' under FAST-41 is defined as "any activity in 

the United States that requires authorization or environmental review by a Federal agency 

involving construction of in!Tastructure."4 ln order to qualify for F AST-41, a project must be 

subject to the NEPA. A covered project must either be: 

'Jd. 

likely to require a "total investment" of more than $200 million, and not qualify for any 

abbreviated authorization or environmental review under other laws; or 
75 

• of a size or complexity in the view of the FPISC that makes the project likely to benefit 

from enhanced oversight and coordination, including an authorization for an 

environmental review likely to require multiple federal agencies or the preparation of an 

EIS under NEP A. 

Certain highway and multimodal surface transportation projects are excluded under 

FAST -41 5

, as well certain water resources projects6 under the Water Resources Development 

Act ("WRDA").7 

A. Current Covered Projects 

As of August 2017, thirty-five "covered projects" have undergone or are currently under 

F AST-41 review. This first tranche of projects was taken from existing pending projects, which 

had an environmental review or authorization pending before a Federal agency ninety days after 

the enactment ofFAST-41. Unless those projects already had a draft environmental assessment 

(EA) or a draft EIS released, they must develop a "coordinated project plan", including a 

permitting timetable. The current "covered projects" include among other things interstate 

natural gas pipelines (7), electricity transmission lines (7), solar energy projects (2), and liquefied 

natural gas terminals ~3). 8 They are located throughout the country, from New York to Florida to 

Oklahoma to Oregon. 

Figure I shows the breakdown ofF AST -41 projects by project type. Figure 2 shows the 

breakdown of FAST -41 projects by identifying the lead agency. Figure 3 shows the status of the 

35 projects subject to FAST-41. Figure 4 is a map from the federal permitting dashboard 

showing where the projects are located: 

' See Pub. L. 112-141. These transportation projects have their own streamlined environmental review framework under the 

Moving Ahead for Progress in the 21" Century Act ("MAP-21 "). 6 See 33 U.S.C. § 2348. These are water resource projects such as harbor, flood mitigation, and navigation development 

authorized by Congress under the jurisdiction of the U.S. Anny Coi)JS of Engineers. WRDA also has a project acceleration 

frovision. 

OffiCE OF MGMT. & BUDGET & COUNCIL ON ENVTL. QUALITY, OFFICE OF THE PRESIDENT, GUIDANCE TO FEDERAL AGENCIES 

REGARDING THE ENVIRONMENTAL REVIEW AND AUTHORIZATION PROCESS FOR INFRASTRUCTURE PROJECTS, § 3.7 (Jan. 13, 2017) 

("Implementation Guidance"), available at 

https:!/www.nermits.perfunnance.gov/sites/pemlits.pertbmmnce.gov/f.iles/docs/Oi1icial%20Signedo/o20FASTw 

41 o/o20Guidance'%20M-17 -14 o/.2020 17-0 1-13.pdf. Other types of actions also may be excluded from FAST -41, including (I) 

prognmunatic plans or E!Ss that do not authorize individual project reviews; (2) any project that does not involve the 

construction ofinfrastructure, i.e. natural resource exploration activities, geological exploration, and offshore renewable site 

assessments; and (3) any Fedemlly-sponsored project in which the Federal Government is the main beneficiary of the project. 8 See Federal Infrastructure Projects Permitting Dashboard ("Permitting Dashboard"), 

https://www.pennits.perfonnance.gov/projects. 

9 See Federal Infrastructure Project Map, httns://v~'Ww.permits.perfonnance.gov/proiects/map. 

6 
76 

"!! 

.. 

8 

7 

Project Count by Type for 35 FAST-41 Covered Projects 

As of 08/24/2017 

]6 

~ .. 

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.... s 

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0 

z 

1) Electricity Transmission - are generally permitted by 

state agencies, as there is no general requirement lor permitting. The seven 

projects covered by FAST-41 require transmission lines to cross federal lands, which 

require the agencies that manage those lands, such as BLM or the U.S. Forest Service, to 

issue perm its. 

2) Nuclear Power Plants- The four projects covered by FAST-41 are for expansion or 

replacement of reactors at existing nuclear power plants, which requires permits issued 

by the Nuclear Regulatory Commission. 

3) Other Water Resources This is a catch all category of water projects that are not 

separately classified in other categories, incluuing storm water or wastewater 

management, llood risk management, reclamation activities, and others. 

4) Cancelled- Two of the 35 FAST-41 projects on the dashboard have officially been 

cancelled. One is a solar project and one was an oil & gas extraction and pipeline 

project. 

7 
77 

Figure 2: 

{Hl'DJ Comnmnity P!antling 

Development C'ommtmity 

Developc:.1ent Fund,::! 

Ill [DOl} Bllfeau of Tndi11Sl .;l.Jfair~. 

Figure3: 

:\'umber of Projects by Lead Agency 

Number of Projects hy Status 

IIi Cancelled 

!!!Complete 

In Progress 

m F~derol Energy Regulatory 

Commidon, 14 
78 

Home ~> Projects 

PROJECT MAP 

Cllck on the dots below to display indivklua.l proje-cts. Use the 'O'¥€rlay' box: at the bottom ofthe map to re:v:eal or hide proje<:ts based on their 

dassificat!on. Leam more about Permitting Dashboard projects' dassifkation categories here: 

•• 

B. Executive Director and FPISC Council 

The Executive Director is a Presidential-appointed (but not Senate confirmed) position 

and the chair of the FPISC. The Executive Director has numerous responsibilities and 

obligations.10 For example, he or she establishes an inventory of"covered projects" under 

FAST-41; maintains the permitting dashboard; makes determinations of what projects are 

"covered" under FAST-41; develops performance schedules for environmental reviews and 

authorizations; designates "facilitating agencies;" mediates any disputes over permitting 

timetables; grants extensions of project deadlines and tracks and accounts for those extensions; 

and submits an annual status report to Congress. 

10 See Implementation Guidance, supra note 7, at Appendix A, Table J. 

9 
79 

In July 2016, President Obama appointed Richard Kidd as the Executive Director of the 

FPISC. Kidd previously served as a Deputy Assistant Secretary of the Army. With the change 

in the administration in January 2017, Janet Pfleeger, the Deputy Director of the FP!SC, is 

serving as the Acting Executive Director. 

The FPlSC is composed of 13 Federal agencies: the Departments of Agriculture, 

Commerce, Interior, Energy, Transportation, Defense, Homeland Security, and Housing and 

Urban Development; the Army Corp of Engineers; the Administrator of the Environmental 

Protection Agency; the Chairman of the Federal Energy Regulatory Commission; the Nuclear 

Regulatory Commission, and the Advisory Council on Historic Preservation. The Director of 

OMB and the Chairman of CEQ are also members of the FPlSC. The FPlSC ha~ several 

responsibilities, including consulting with the Executive Director on establishing an inventory of 

"covered projects," developing and publishing recommendations on "best practices" for various 

permitting activities, and making recommendations to and consulting with the Executive 

Director on "facilitating agency" designations. 11 

C. Process 

1. Initiation 

Projects under FAST -41 are initiated by the project sponsors through the submission of 

an Initiation Notice to the Executive Director and the appropriate "facilitating agency." The 

"facilitating agency" serves as the point of contact for the project sponsor until a "lead agency" 

is determined. 12 OMB has designated "t(lcilitating agencies" for several of the project types 

covered by FAST-41. 13 For example, FERC is the "Jacilitating agency" for interstate natural gas 

pipelines, and USDA is the "facilitating agency" for rural broadband infrastructure. 

An ''Initiation Notice" must include the following: 

the purpose and objectives ofthe proposed project; 

• the location of the proposed project, and the locations of any environmental, cultural, 

and historic resources within the project area: 

the technical and financial feasibility of the construction project; 

any Federal financing, environmental reviews and authorizations likely to be needed 

to complete the proposed project; and 

an assessment that the proposed project satisfies the '·covered project'' criteria under 

FAST-41. 14 

11 See id. at Appendix A, T(lb!e I. 12 Supra note 2, at~ 4370m( 13). 13 See Implementation Guidance, supra note 7. at§ 3J. 14 Supra note 2. at§ 4370m-2(a)( I )(C). 

10 
80 

After the facilitating agency determines that an Initiation Notice 15 is complete, the 

Executive Director makes the final decision on whether the proposed project is covered under 

FAST-41. !fit is a covered project, the Executive Director has 14 days to post it on the 

Permitting Dashboard. Once the project is posted, the following deadlines are triggered for the 

facilitating agency or the lead agency: 

• 45 days to: 

o "identifY all Federal and government entities likely to have financing, 

environmental review, authorization, or other responsibilities with respect to 

the proposed project"; and 

o invite all appropriate agencies to become a "participating agency" or a 

"cooperating agency." 16 

• 60 days to develop a "Coordinated Project Plan." 17 

Under FAST -41, a "cooperating agency" is any agency with jurisdiction under Federal 

law or special expertise for environmental reviews. 18 For states to be cooperating agencies under 

FAST-41, they must choose to participate in the FAST-41 process. According to OMB's 

Implementation Guidance, a FAST -41 "cooperating agency" has "a concurrence role for the 

permitting timetable, a heightened role for the modification of schedules and decisions to extend 

public comment periods, a specific role in alternative analyses and selection of methodologies 

for environmental review of the covered project, and a concurrence role in decisions to develop 

the preferred alternative to a higher level of detail." 19 

A "participating agency" participates in the environmental review or authorization for a 

covered project under FAST -41 ;

20 but it has no authority or jurisdiction over the covered 

project? Participating agencies, which may include states, local or tribal governments who 

choose to be involved, may become cooperating agencies ifthere is a change in circumstances. 

Among their roles, FAST -41 participating agencies: (I) consult with the facilitating or lead 

agency on the establishment of the Coordinated Project Plan; (2) consult with the facilitating or 

lead agency on setting a permitting timetable for a covered project; (3) work cooperatively with 

the lead agency and cooperating agency to identify and resolve issues that could delay a covered 

project; and (4) identify any potential environmental impacts that could delay substantially or 

prevent an agency from completing an environmental review for a covered project. 22 

15 For a project sponsor interested in submitting an Initiation Notice for a proposed project, the fonn can be found at 

https://www.pennits.pert0nnatJ9.g_,gQyft..ools/.i.n.t.~ilJ1-n1.~J.:-±1..:i1liJW.1i911:-1\QJ.i~&.i.illi!L1:!..9Jim:lli· 

16 Supranote2, at§ 4370m-2(a)(2)(A). 17 Jd. at§ 4370m-2(c)(1)(A). 18 Jd at§ 4370m(4). 19 lmplementation Guidance, supra note 7, at§ 2.13. 20 Supra note 2, at § 4370m(l7). 21 Jd. at§ 4370m-2(a)(4)(A). 22 See Implementation Guidance, supra note 7, at Appendix A, Table II. 

ll 
81 

2. Permitting Timetable 

As part of the project coordination process, a permitting timetable includes intermediate 

and final completion dates for action by each participating agency on any Federal environmental 

review. 

3. Permitting Dashboard 

FAST-41 provides for the establishment of a Permitting Dashboard.23 Within a few 

months ofthe enactment ofFAST-41, OMB had updated and enhanced an existing dashboard 

platform, thereby creating the FAST-41 Permitting Dashboard at lY_~yw.permits.pcrformancc.gov. 

The statute requires the Executive Director maintain the Permitting Dashboard, which must 

include a "specific and searchable entry for each covered project."24 The permitting dashboard is 

available online currently?5 Figure 5 and 6 are examples of the information that is on the 

dashboard: 

Figure 5: 

FAST-41 Covered Project5 DOT Proje-cts 

The lnfra:strut:ture proj~cts be!ow ;ore ;dEntified as 

Art. 

lead Agency 

An)'· 

23 Supra note 2, at§ 4370m(7). 24 /d. at§ 4370m-2(b). 25 See Pennitting Dashboard. supra note 8. 

ottte.r Tmcked Projects Leoacy Project5 

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82 

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83 

Under FAST-41, the Executive Director is required to publish on the Permitting 

Dashboard for each covered project: (1) the permitting timetable; (2) the status of each agency's 

compliance with the timetable; (3) any changes to the permitting timetable and explanations for 

those changes; and (4) any memorandum of understanding on coordination between the 

facilitating or lead agency, and any state, local or tribal government. 26 Cooperating and 

participating agencies are also required to post various initiating and supporting documents 

throughout the review process.27 They must publish that information no later than 5 business 

days from when they receive it.28 

4. Other Important Provisions 

FAST-41 contains several other significant streamlining provisions, including: 

• Incorporation of State Documents: State documents prepared under state laws and 

requirements that are "substantially equivalent" to NEPA can be adopted for FAST-41 . 29 rev1ews. 

• Concurrent Reviews: In order to achieve a "single, synchronized process," FAST-41 

requires agencies "to the maximum extent possible" to conduct environmental reviews 

and authorizations in a concurrent manner as opposed to sequentially. 30 

• Dispute Resolution: Fast-41 and the subsequent OMB Implementation Guidance 

provide several mechanisms for resolving disputes that may arise between agencies 

involved in FAST-4 t review31 Based upon anecdotal information, agency 

disagreements have been known to hold up and significantly delay project reviews, from 

time to time, so focus on resolving those disputes quickly and early could be particularly 

impactful. Under FAST -41 the Chainnan of CEQ shall resolve any dispute over 

designation of a facilitating or lead agency for a particular covered project. 

D. Litigation Reforms 

An aspect of FAST-41 that does not alwctys receive as much attention is the significant 

legal reform to NEPA reviews subject to FAST-41. Specifically, FAST-41 imposes a 2 year 

statute of limitations to any claims "arising under Federal taw seeking judicial review of any 

authorization issued by a Federal agency for a covered project'' tix which an agency has 

published notice "in the Federal Register of the final record of decision or approval or denial of a 

permit."32 The 2 year statute of! imitations begins to run when the notice of the authorization is 

published in the Federal Register. Previously, reviews done pursuant to NEPA- which is silent 

on the subject of a statute of! imitations- were subject to a 6 year statute of limitations under the 

26 Supra note 2. at~ 4371lm-2(b)(4). 17 Jd. at§ 4371lm-2(b)(3)(A). 

"Id. at§ 4371lm-2(b)(J)(ll). 20 Id at§ 4370m-4(b). 30 ld at§ 4370m-4{a); lmpkmcntntion Guidance. supra note: 7, at§ 4.39. 31 Jd at§ 4370m-2(c)(2)(C): Implementation Guidance. supra note 7. at~~ 4.9 and 4.30. 32 !d. at~ 4370m~6{a)(l) (emphasis added): Implementation Guidance, supra note 7. at* 6. 

14 
84 

general statute of limitations for suits against the federal govcrnmcnt. 33 Reducing the statute of 

limitations for claims under FAST-41 will bring more certainty and finality to pcnnitting 

decisions for major infrastructure projects. 

The FAST-41 litigation section also mandates that only a patty that submitted a comment 

during the environmental review may flle a legal challenge to a NEPA review for a covered 

project.34 This will prevent third parties Jl·om weighing in for the first time on a FAST-41 

covered project through a lawsuit. As FAST-41 demands, concerns underlying such a lawsuit 

must be raised earlier in the process. 

While it is important that these review and permitting processes for major infrastructure 

projects focus on environmental impacts. there also must be opportunities to recognize the 

employment impacts realized from these projects. FAST-41 provides just such an opportunity 

on the litigation front. Specifically, in any legal action seeking a temporary restraining order 

("TRO") or a preliminary injunction against an agency or a project sponsor regarding the review 

of a covered project, the court must consider "the potential effects on public health, safety, and 

the environment, and the potential significant negative effects on jobs resulting from an order or 

injunction," and it cannot presume that any of those harms are reparable.35 Consequently, courts 

will have to acknowledge and address jobs that could be lost ifFAST-41 projects are blocked 

through TRO or preliminary injunction challenges. The business community has been 

advocating for many years lor this type of balancing of environmental and economic impacts 

during the federal permitting process. 

III. FUNDING THE FAST-41 PROGRAM 

The implementation of the FAST-41 program can be funded in several ways through 

fees, agency transfers, and direct appropriations. 

FAST-41 provides for the establishment of a "fee structure for project proponents to 

reimburse the United States lor reasonable costs incurred in conducting environmental reviews 

and authorizations tor covered projects."36 This Environmental Review Improvement Fund 

would be in a separate fund in the Treasury, and likely overseen by OMB. This fee structure 

would help facilitate timely and efficient environmental reviews for FAST-41 covered projects. 

Notably, the aggregate amount of'fees that could be collected for a fiscal year under the FAST41 fee structure would be limited to 20% ofthe "total estimated costs for the fiscal year for the 

resources allocated for the conduct of the environmental reviews and authorizations" covered by 

FAST-4L37 

Congress may also appropriate funds for the program. In the House, the Appropriations 

Subcommittee on Financial Services and General Government (the "Subcommittee") has 

jurisdiction over those appropriations. Its FY 18 appropriation marks the first time that the 

33 See 28 U.S.C. § 240 !{a) (the gencr<1l statute oflimit(llions fhr Federal suits against the government). 34 Supra note 2, at s 4370m-6(al( I). 35 /d. at s 4370m-6(h). 

'"/d. at§ 4370m·8(a). 37 /d. at§ 4370m-8(c)(3). 

15 
85 

Subcommittee will appropriate money into the fund, as the Subcommittee did not appropriate 

Funds for FYI7.38 

In his budget request for FYI8, President Trump requested that $10,000,000 remain 

available in the Fund until used "for necessary expenses of the Environmental Review 

Improvement Fund."39 Rather than meet this request, the Subcommittee has instead proposed to 

appropriate $1,000,000 towards the Fund. 40 The Chamber supports the funding levels requested 

by the President. 

IV. FPISC'S PROGRESS ON IMPLEMENTATION 

With a relatively small staff, FPISC has made significant accomplishments in the short 

time since passage ofFAST-41 on December 4, 2015. Below are some of the major 

achievements FPISC has made to implement FAST -41: 

• 

• 

• 

On September 22, 2016, FPISC released the initial inventory of34 existing 

infrastructure projects that would be considered "covered" under FAST -41.41 

On January 13,2017, in coordination with FPISC, OMB and CEQ issued 

guidance to carry out their responsibilities under FAST -41. The guidance 

highlighted agency roles and responsibilities, covered projects, project-specific 

guidance, use ofthe Permitting Dashboard, statute oflimitations provisions, and 

information collection among other things. 42 

On JanuafJ 18, 2017, FPISC released both its Recommended Performance 

Schedules4 and Recommended Best Practices under FAST-41.44 

In April2017, FPISC released its FYI 6 Annual Report to Congress describing its 

progress accomplishments under FAST-41.45 

38 Compare Financial Services and General Government Appropriations Act, 2018, H.R. _at 83, 115lh Cong. (2017) (as 

proposed) (appropriating $1,000,000 in FYI8 for the Fund) wilh Financial Services and General Government Appropriations 

Act, 2017, H.R. S48S, 114th Cong. (2016) (appropriating no money in FYI? for the Fund). 

39 OFFICE OF MGMT. & BUDGET, EXEc. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 

2018, at 1070 (2017), available at https:l/mvw.aovinfb.g;w/content/pkgiAUDGET·20 18-APP/pdt!B!JDGET·2018·APP.ndf. 40 See Financial Services and General Government Appropriations Act, 2018, supra note 38. 41 FED. PERMITTING IMPROVEMENT STEERING COUNCIL, EsT ABUSHMENT OF COVERED PROJECT INVENTORY (Sept. 22, 20 16), 

available at https://\\'\\'W.permits.pcrfiwmance.govlabmttfncws/fuisc~unnounccs-fhst~4l-covered-projecl'i. 42 Implementation Guidance. supra not~ 7. 43fED. PERMirnNG IMPROVEMENT STEERING COUNCIL, RECOMMENDED PERFORMANCE SCHEDULES FOR ENVIRONMENTAL REVIEWS 

AND AUTHORIZATIONS FOR FAST ·41 COVERED INFRASTRUCTURE PROJECTS (Jan. 18, 20 17), available at 

https://\V\\W.pennits.perfunnance.gov/sites/pernits.performance.gov/files/docs/FPJSCo/o20Perfonna.n_ce%20Schedules-

%20FINAL-%2001182017 -fim!Lm:!f 44 FED. PERMITTING IMPROVEMENT STEERrNG COUNCIL, RECOMMENDED BEST PRACTICES FOR ENVIRONMENTAL REVIEWS AND 

AUTHORIZATIONS FOR INFRASTRUCTURE PROJECTS (Jan. 18, 20 17), available at 

httos://www.pcnnits.performancc,gov/sites/permits.pcrfonnance.gov/files/docs/FPISC%20Best%20Practiceso/o20FINALo/o2001182017"/o283~~<!f 

''FED. PERMITTING IMPROVEMENT STEERING CouNCIL, FAST-41 FY20 16 ANNuAL REPORT TO CONGRESS (Apr. 2017), available 

at https://www.pcrmits.perfbnnance.gnv/siies/pemlits.pcrlOrmance.gov/tiles/docs/F AST41 o/olOFYo/..2020 16o/o20Annual%20Report%20to%20Congress"/o204.15 .17 .pdf 

16 
86 

Presently, FPISC member agencies and the General Services Administration with 

OMB guidance, is developing a fee structure for infi·astructure project proponents 

and sponsors to reimburse FPISC for reasonable costs incurred for implementing 

FAST-41. 

V. CONGRESSIONAL AND ADMINISTRATION ACTIONS REALTING TO 

FAST -41 THE STATUTORY PERMIT STREAMLINING PROCESS 

While the provisions of FAST-41 arc both clear and structurally sound, it is not a law that 

is widely known either within or outside of government. As a result some in Congress are 

proposing new permit stream lining legislation for specific industries, and the President has 

issued two Executive Orders to establish an administrative process that streamlines project 

permitting. 

A. Confusing Congressional Efforts that Duplicate FAST-41 Streamlining 

The purpose of permit streamlining is to provide regulatory certainty. Passage ofFAST41 brought about this much needed certainty to a multitude of diverse industries and projects 

critical to our economy such as renewable and conventional energy, electricity transmission, 

aviation, certain water resources, broadband. pipelines, and manufacturing. FAST -41 was 

designed to eliminate the historical patchwork of permitting regimes that created regulatory 

uncertainty. Since FAST-41 is statutory, it establishes a statutory system of faster, more reliable 

environmental permitting for infrastructure projects. Without implementing FAST-41 we are 

locked in a historical system that does not have time limitations which can lead to almost 

limitless delay in project completion. Yet several congressional committees with substantive 

jurisdiction over specific laws are attempting to develop targeted permit streamlining legislation 

as ifFAST-41 has never been enacted. 

While many of these bills currently being considered by Congress draw upon the 

principles of FAST-41, they set up different processes and time-frames and sometimes different 

statutes of limitations. which is a source of confusion. Some permil!ing improvement bills also 

do not provide a mechanism for funding to ensure the agency can comply with streamlining 

requirements while others enable stakeholders to fund the permitting process. FAST-41, on the 

other hand, enables FP1SC to charge a fee to fi.md the agencies' streamlined review of a project. 

Similarly, a bill already passed by the House of Representatives this year, H.R. 1654, "the Water 

Supply Permitting Coordination .Act" allows for non-governmental entities to pay for expedited 

review with the condition that the deciding agency must be impartial. 

Transparency is another principle that has been incorporated into various permitting bills. 

Legislation like H.R. 2910, the ''Promoting Interagency Coordination for Review of Natural Gas 

Pipelines Act" streamlines requirements f~Jr obtaining a natural gas certificate of public 

convenience and requires a publication of an online a tracker of actions required by federal 

agencies. FAST-41 similarly requires the Executive Director of FPISC to post an online 

dashboard of FAST-41 projects. 

17 
87 

Some other bills seek to expand the scope of permit streamlining, either by strengthening 

requirements or enlarging the range of projects that can be included. For instance, S. 1363, the 

"Rural Broadband Deployment Streamlining Act", creates a 270-day shot clock after which an 

application for siting of telecommunications equipment on federal land is deemed granted if the 

Department of the Interior does not act. 

H.R. 540 and S. 145, known as the "National Strategic and Critical Minerals Production 

Act" cover an economic sector, mining, that is not specifically identilied by FAST-41 but draws 

upon many of the principles of FAST-41 such as encouraging agencies to conduct concurrent 

reviews when possible. Like FAST-41, agencies would be required to follow a permitting 

schedule. Unlike FAST-41, the "National Strategic and Critical Minerals Production Act" 

imposes a 30-month deadline if the parties involved cannot agree upon a permitting schedule. 

Given that Congress has already put in place FAST-41 to encourage regulatory certainty 

for a wide variety of industries, Congress should harmonize their legislative solutions with the 

provisions of FAST-41. If Congress Jinds the scope of FAST-41 too narrow, it should consider 

expanding it to other projects. 

Permit streamlining requires a clear and defined process, timeline, and structure for the 

coordination and scheduling of environmental reviews. The Chamber supports the FAST-41 

process because it establishes coordination among participating agencies, a method to set 

timetables based on data for real project reviews, and a dispute resolution process. The certainty 

and clarity of this process is necessary to encourage infrastructure development. 

B. Recent ExecutiYe Actions 

Within its first few days, the Trump administration made it clear through executive action 

that getting infrastructure projects reviewed. permitted, and built in a timely manner would be a 

high priority. On January 24. 20 17, President Trump released tour executive memoranda and 

one executive order relating to infrastructure and permitting. Most significantly, under 

Executive Order 13 766, any Federal agency or governor may submit a project to CEQ that it 

thinks qualifies as "high priority." After considering the "project's importance to the general 

welfare, value to the Nation, environmental benefits, and other such factors as the [CEQ] 

Chairman deems relevant." the CEQ Chairman within 30 days must determine whether the 

project qualifies as "high priority." Tf it does, the CEQ Chairman coordinates with other relevant 

agencies to establish expedited procedures and deadlines for completing environmental reviews 

of the project. If an agency tilils to meet a deadline, it must provide to the CEQ Chairman a 

written explanation for the delay. 

Executive Order 137CJ6 did not address how it would be coordinated with FAST- 41. 

Specifically under Executive Order 13766 high-priority projects would be initiated by Governors 

or the heads of federal agencies and the Chairman of CEQ would determine which projects were 

high-priority projects. Under FAST- 41 the project sponsor initiated the project and the 

Executive Director of FPISC: would determine if it was a covered project. 

18 
88 

On August 15, 2017, President Trump issued Executive Order 13807 detailing how the 

Executive Orders and FAST- 41 would work together to achieve an efficient environmental 

review for infrastructure projects. Essentially the FAST- 41 process remains in place for 

projects covered under its application frocedure as well as for high-priority projects referred to 

the process by the chairman of CEQ. 4 Executive Order 13 807 also sets up a coordination 

process under which CEQ and the Executive Director ofFPISC resolve disputes. 

In addition, Executive Order 13807 requires: 

l. The establishment of a Cross-Agency Priority ("CAP") Goal to improve interagency 

performance with regard to infrastructure permitting. The Government Performance 

and Results Act of 20 I 0 established CAP Goals as tools to accelerate the progress of 

federal priorities that require active collaboration between multiple agencies to 

eliminate organizational barriers. 

2. The creation of a single Record of Decision by the lead agency. 

3. A deadline for permitting decisions to be made 90 days after the release of the Record 

of Decision. While FAST- 41 does not have this specific requirement, its process 

will achieve a similar result by having the lead agency set a permitting timetable that 

is based on the average permitting completion time for a particular project type. 

Any conflicts that arise from these minor inconsistencies should be easily resolved since 

Executive Order 13 807 states that nothing in the order shall be construed to impair or affect the 

"authority granted by law to an executive department, agency or head .... " The Order also states 

that expedited permitting is to be consistent with FAST -41 and the "best practices" annually 

identified by FPISC, where applicable. As to the parts of the Executive Order that impose 

additional requirements on agencies that are in addition to and not inconsistent with FAST- 41 

requirements; e.g. CAP goals, those requirements would also apply to FPlSC. 

The key benefit to having both FAST- 41 and Executive Order 13807 for permit 

streamlining is that FAST- 41 is a statutory process for streamlining environmental reviews for 

facilities over $200 million and projects in need of multiple environmental reviews while 

Executive Order 13807 provides coordination and an expedited review similar to FAST- 41 for 

designated high- priority projects that may not be covered by the FAST- 41 program. Together 

both programs cover the vast majority of projects in need of an efficient, coordinated permit 

review process. 

The FAST -41 program however, has statutory benefits that cannot be provided by 

Executive Order; i.e. the two year statute of limitation on lawsuits challenging final decisions 

46 Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and 

Permitting Process for Infrastructure at Sec. 5(0 (Aug. 15, 2017) available at https://www.whitehouse.gov/thepress-office/2017/08/15/presidentia !-executive-order -establishing-discipline-and-accountability. 

19 
89 

and a fee structure which funds the FAST - 41 process to ensure adequate staff is available to 

meet its objectives.47 

C. Dashboard Consistency 

It is important that the Permitting Dashboard contain the most accurate and up-to-date 

information on each covered project. To that end, there is a currently a clear disparity in the 

quality of information that each lead agency is providing to FPISC. For example, the 

information available for projects covered by FERC or the Bureau of Land Management includes 

all of the statutorily-required data, whereas the information available for projects covered by 

other agencies is minimal at best. To be useful the Dashboard must have information displayed 

in a consistent manner. The Chamber believes the appointment of an Executive Director would 

provide leadership to achieve this critical requirement in order to coordinate and standardize how 

agencies fulfill the Permitting Dashboard requirement. Figure 7 is a chart that categorizes the 

infrastructure presented on the Dashboard as either "Meets Statutory Obligations" or "Does Not 

Meet Statutory Obligations." 

47 Fee collections by federal government agencies are commonplace and well-established by precedent across a wide 

range of activities and agencies. A GAO study surveyed 23 federal agencies and reported that in fiscal year 2010, 

21 of the agencies collected some kind of fees. See GAO, 2012 Annual Report: Opportunities to Reduce 

Duplication, Overlap and Fragmentation, Achieve Savings, and Enhance Revenue, GA0-12-342-SP, February 

2012, Chapter 43, available here: IJ.J!N;I/www.gao.gg_vlmodules/ereoorllhandlcr.php'?!" 1&path~/ereoort!GA0-12-

342SP/data center savings/Genera! govcrnmenu'43. Federal User Fees. In total, 3,600 different fees were 

collected, totaling nearly $64 billion in fiscal year 2010. Examples of fees related to permitting include: 

The Nuclear Regulatory Commission, which is required under law to recover approximately 90% of its 

annual budget through fees, charges licensing fees to all nuclear facility operators. 

The Federal Energy Regulatory Commission charges fees for a variety of licenses and applications, 

including pipeline certification, authorization, petitions for rate approvals, applications for qualifYing 

stature as a small power production facility, etc. FERC is 100% funded by fees, collecting over $300 

million per year and employing over 1,500 people. According to PERC's 2017 fee review and update, the 

range of fees charged varies fi·om as little us $100 to over $30,000. FERC charges fees for various steps 

along the way for a project's completion. See 2017 Annual Update of Filing Fees available here: 

httos://www.ferc.gov/docs-tilingitce-sched/annual.pdf. 

The bulk offee collections by agencies are for non-regulatory items, such as passport applications, patent 

applications, customs authorizations, national park entry fees, or fees for various government approval processes, 

such as FDA drug or medical device approvals. 

Many of the 3,600 fees represented in GAO's sample are authorized directly by Congress in agency authorizing 

statutes or appropriations language. If an agency lacks statutory authority to collect fees, it still may do so under the 

processes of the Independent Oflices Appropriation Act of 1952. This requires that agencies develop fair fee 

collection processes and that fees are assessed only insofar as they are justified by the costs that the government 

incurs to provide services for which they are assessed. 

GAO has developed further fee structure guidance j(" agencies at the behest of Congress. GAO's 2008 report 

Federal User Fees: A Design Guide lays out the key principles behind the design and oversight of agency user fee 

programs. See GAO, Federal User Fees: A Design Guide, GA0-08-386SP, May 2008 available here: 

http://www.gao.gov/products/G;\~)-0R-386sp. In the guidance, GAO also details requirements for continuous 

review of fee-based programs as required by the Chief Financial Officer Act of 1990 and OMB Circular A-25 

guidance. 

20 
90 

Figure 7: 

Title I Lead Agency Bureau/Mode Sector Project Type Status 

.· Meets Statutory Obligations · .. 

Atlantic Coast Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Pipeline, Atlantic Regulatory Regulatory Pipelines 

Coast Pipeline Commission Commission 

Amendment, Supply 

Header, and ACPPiedmont Lease 

Atlantic Sunrise Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Regulatory Regulatory Pipelines 

Commission Commission 

Boardman to Department of Bureau of Electricity Electricity In Progress 

Hemingway Interior Land Transmission Transmission (all) 

Transmission Line Management 

Chokecherry-Sierra Department of Bureau of Renewable Wind: Other than In Progress 

Madre Wind Energy Interior Land Energy Federal Offshore 

Management Production 

Den bury Riley Ridge Department of Bureau of Pipelines Land-based Oil & Gas In Progress 

to Natrona Project Interior Land 

C02 Management Production/Extraction 

Desert Quartzite Department of Bureau of Renewable Solar In Progress 

Solar Interior Land Energy 

Management Production 

Energy Gateway Department of Bureau of Electricity Electricity Complete 

South Transmission Interior Land Transmission Transmission (all) 

Project Management 

Gateway West Department of Bureau of Electricity Electricity I Paused 

Segments 8 & 9 Interior Land Transmission Transmission (all) 

Management 

Gordon Butte Federal Energy Federal Energy Renewable Non-Federal Complete 

Pumped Storage Regulatory Regulatory Energy Hydropower Licenses 

Commission Commission Production 

Gulf LNG Federal Energy Federal Energy Pipelines Liquefied Natural Gas In Progress 

Liquefaction Project Regulatory Regulatory Terminal Facilities and 

Commission Commission associated Natural 

Gas Pipelines 

Liberty Department of Bureau of Conventional Offshore Oil & Gas In Progress 

Development and Interior Ocean Energy Energy 

Production Plan Management Production 

21 
91 

Mid-Barataria Department of U.S. Army Water Other Water In Progress 

Sediment Diversion Defense Corps of Resources Resource Projects 

Engineers 

Regulatory 

Mountain Valley Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

and Equitrans Regulatory Regulatory Pipelines 

Expansion Project Commission Commission 

Nexus Gas Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Transmission, TEAL, Regulatory Regulatory Pipelines 

DTE Lease, and Commission Commission 

Vector Lease 

Penn East Pipeline Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Regulatory Regulatory Pipelines 

Commission Commission 

Plains and Eastern Department of Office of Electricity Electricity In Progress 

Clean Line Energy Electricity Transmission Transmission (all) 

Delivery and 

Energy 

Reliability 

R.C. Byrd Federal Energy Federal Energy Renewable Non-Federal In Progress 

Regulatory Regulatory Energy Hydropower Licenses 

Commission Commission Production 

Red River L&D No. 4 Federal Energy Federal Energy Renewable Non-Federal Complete 

Regulatory Regulatory Energy Hydropower Licenses 

Commission Commission Production 

Swan Lake North Federal Energy Federal Energy Renewable Non-Federa I In Progress 

Pumped Storage Regulatory Regulatory Energy Hydropower Licenses 

Commission Commission Production 

Ten West Link Department of Bureau of Electricity Electricity In Progress 

Interior Land Transmission Transmission (all) 

Management 

Tennessee Gas Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Abandonment and Regulatory Regulatory Pipelines 

Capacity Restoration Commission Commission 

Transwest Express Department of Bureau of Electricity Electricity In Progress 

Interior Land Transmission Transmission (all) 

Management 

Venture Global Federal Energy Federal Energy Pipelines Liquefied Natural Gas In Progress 

Calcasieu Pass Regulatory Regulatory Terminal Facilities and 

Terminal and Commission Commission ' associated Natural 

TransCameron Gas Pipelines 

Pipeline Project 

WB Xpress Federal Energy Federal Energy Pipelines Interstate Natural Gas In Progress 

Regulatory Regulatory Pipelines 

Commission Commission 

22 
92 

' ··'·.,.·,'. .,.,.,,.i 

Aiya Solar Project Department of Bureau of Renewable Solar Complete 

Interior Indian Affairs Energy 

Production 

Alaska LNG Project Federal Energy Fed era I Energy Pipelines Liquefied Natural Gas In Progress 

Regulatory Regulatory Terminal Facilities and 

Commission Commission associated Natural 

Gas Pipelines 

East Side Coastal Housing and Community Water Other Water In Progress 

Resiliency Urban Planning and Resources Resource Projects 

Development Development; 

Community 

Development 

Fund 

Fort Mojave Solar Department of Bureau of Renewable Solar Cancelled 

Project (Fort Mojave Interior Indian Affairs Energy 

Tribe) Production 

Hudson River Housing and Community Water Other Water In Progress 

Project: Resist, Urban Planning and Resources Resource Projects 

Delay1 Store1 Development Development; 

Discharge Community 

Development 

Fund 

Kake to Petersburg Department of U.S. Forest Electricity Electricity Complete 

Transmission Agriculture Service I Transmission Transmission (all) 

Project 

Levy Nuclear Plant Nuclear Office of New Conventional Nuclear Power Plant- Complete 

Units 1 and 2 Regulatory Reactors Energy Combined license 

Commission Production 

North Anna Power Nuclear Office of New Conventional Nuclear Power Plant- Complete 

Station, Unit 3 Regulatory Reactors Energy Combined license 

Commission Production 

North-South Project Department of U.S. Forest Pipelines Land-based Oil & Gas Cancelled 

Agriculture Service 

Production/Extraction 

Turkey Point1 Units Nuclear Office of New Conventional Nuclear Power Plant- In Progress 

6 and 7 Regulatory Reactors Energy Combined license 

Commission Production 

William States Lee Nuclear Office of New Conventional Nuclear Power Plant- Complete 

Ill Nuclear Station, Regulatory Reactors Energy Combined license 

Units 1 and 2 Commission Production 

23 
93 

VI. RECOMMENDATIONS 

FPISC, OMB, CEQ and the other agencies involved have done good quality work in the 

past fifteen months to get FAST-41 up and running and to begin its implementation. There is 

still work to be done. Our specific recommendations are: 

:» Congress should encourage the President to appoint an Executive Director under FAST41 as soon as possible so that additional projects can be submitted and, if covered, be 

included in the program. 

:» Congress should fund FAST-41 for FY 18 at the amount of the President's budget request 

of $10,000,000. 

> When appointed. the Executive Director needs to undertake a significant amount of 

educational outreach to Congress, the Executive Branch, and the public on the benefits of 

the FPISC process. and to encourage more projects to apply for FAST-41 covered status. 

> When appointed. the Executive Director should provide additional guidance to agencies 

on the type and quality of information needed to ensure the information on the Dashboard 

is consistent and contains high quality information. 

:» Congress should amend FAST-41 to eliminate the seven-year sunset provision that was 

attached by the House of Representatives as the final bill was being negotiated informally 

between members of the !-louse ;md Senate. 

> The Executive Director. OMB, FPISC. and the Chairman of CEQ should coordinate and 

encourage "high-p1·iority" projects nominated under Executive Order 13 766 to apply for 

FAST-41 consideration. If Congress believes the scope of FAST-41 is too narrow, it 

should encourage the steering council to accept projects likely to benefit from enhanced 

oversight and coordination as authorized under 42 USC§ 4370m(6)(A). 

VII. CONCLUSIO:\' 

The Chamber appreciates the new administration highlighting this important issuestreamlining and building major infrastructure projects. The tools to implement these concepts 

exist- indeed a well-thought out. bipartisan approach to this issue has been developed. 

legislated, enacted imo Lm, and is already being implemented. And that approach and law is 

FAST-41. The provisions of FAST-41 certainly can be coordinated with the newer streamlining 

initiatives introduced by the current administration. In that regard. we encourage Congress and 

the administration to promote and implement FAST-41 by providing the necessary resources to 

fully implement the statute. 

Thank you for alhming me to testify before your committee today. 

24 
94 

TESTIMONY BY 

SCOTT SLESINGER 

LEGISLATIVE DIRECTOR 

OF THE 

NATURAL RESOURCES DEFENSE COUNCIL 

The Federal Permitting Process for Major Infrastructure Projects, Including the Progress 

made by the Federal Permitting Improvement Steering Council since passage of the 

FAST Act in 2015 

U.S. Senate Permanent Subcommittee on Investigations 

Homeland Security and Government Affairs Committee 

United States Senate 

September?, 2017 
95 

Thank you for the opportunity to testify today. My name is Scott Slesinger, and I am the 

Legislative Director for the Natural Resources Defense Council (NRDC). NRDC is a nonprofit 

organization of scientists, lawyers, and environmental specialists dedicated to protecting 

public health and the environment. Founded in 1970, NRDC has more than 2.4 million 

members and online activists nationwide, served from offices in New York, Washington, Los 

Angeles, San Francisco, Chicago, and Beijing. I appreciate the opportunity to testify, and 

hope that my remarks will assist the Subcommittee as it considers the important issues raised 

by Title 41 of the Fixing America's Surface Transportation (FAST) Act" 

Why NEPA is important 

I would like the Committee to appreciate why the National Environmental Policy Act (NEPA) 

and the federal permitting requirements to protect our air, water and wildlife are so important. 

With an emphasis on "smart from the start" federal decision making, NEPA protects our 

health, our homes, and our environment. Passed by an overwhelming bipartisan majority and 

signed into law by President Nixon, the law was prompted in part by concerns from 

communities whose members felt their views had been ignored in setting routes for the 

Interstate Highway System. NEPA has empowered the public, including citizens, local 

officials, landowners, industry, and taxpayers, and demanded government accountability for 

more than 40 years. 

NEPA is democratic at its core. In many cases, NEPA gives citizens their only opportunity to 

voice concerns about a federal project's impact on their community. When the federal 
96 

government undertakes a major project such as constructing a dam, a highway, or a power 

plant, or if a private entity needs a federal permit so it can pollute the air or water, it must 

ensure that the project's impacts environmental and otherwise- are considered and 

disclosed to the public. And because informed public engagement often produces ideas, 

information, and solutions that the government might otherwise overlook, NEPA leads to 

better decisions- and better outcomes- for everyone. The NEPA process has saved 

money, time, lives, historical sites, endangered species, and public lands while encouraging 

compromise and resulting in better projects with more public support. Our website 

https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories 

highlights NEPA success stories that prove this point. Thanks to this law, tens of thousands 

of Americans have participated in important federal decisions. 

Implementation of the NEPA process has not been perfect. Due to lack of funding, many 

agencies have had their NEPA staffs decimated. This has led to an over-reliance on 

consultants instead of conducting environmental analyses in-house. Because agencies must 

oversee and approve contractors' work, the process is often further delayed. There is a 

persistent but false narrative that NEPA is the primary cause of project delay. This is simply 

not true. Repeated investigations by the Congressional Research Service underscore both 

that factors other than federal NEPA reviews are the primary cause of project delays, and 

that better resource allocation at a federal agency can expedite decision making. 

The Congressional Research Service report found that: 

"The time it takes to complete the NEPA process is often the focus of debate over 
97 

project delays attributable to the overall environmental review stage. However, the 

majority of FHWA-approved projects required limited documentation or analyses under 

NEPA Further, when environmental requirements have caused project delays, 

requirements established under laws other than NEPA have generally been the 

source. This calls into question the degree to which the NEPA compliance process 

is a significant source of delay in completing either the environmental review process 

or overall project delivery. Causes of delay that have been identified are more 

often tied to local/state and project-specific factors, primarily local/state agency 

priorities, project funding levels, local opposition to a project, project 

complexity, or late changes in project scope.'o1 

The Chamber of Commerce report, "Project No Project" (www.projectnoprojectcom), 

contrary to its executive summary, confirms these findings. The Chamber's own case studies 

show that it is not federal rules that are causing the delays, but rather state and local laws, 

zoning, lack of funding, and citizen opposition to projects. 

Recent Changes to the NEPA and Permitting Process 

NRDC's role in Senator Portman and Senator McCaskill's FAST Act goes back to July 2013 

when I, along with my fellow panelist Bill Kovacs from the Chamber of Commerce, testified on 

one of the many iterations of House bills to weaken the NEPA process, the RAPID Act At the 

hearing, Democratic Rep. Steve Cohen of Tennessee and Republican Rep. Tom Marino of 

Pennsylvania agreed that we both made good points and that we should sit down and come 

to an agreement We had a few discussions but failed to come to an agreement When the 

Portman-McCaskill bill, which was based loosely on the RAPID Act, moved in the Senate two 

1 The Role of the Environmental Review Process in Federally Funded Highway Projects: Background and Issues 

for Congress", CRS 7-5700, R42479, April11, 2012. 

ii Ibid. 
98 

years later, we again sat down with officials from the Chamber and the Senate and tried to 

work something out. With significant input from the Administration, NRDC supported the final 

agreement-although it included many provisions we opposed. 

One reform that the Chamber and NRDC both agreed on from the beginning was the need for 

more funding and more staff to conduct permitting and environmental reviews. As I mentioned 

earlier, the loss of agency expertise and the lack of staff support for NEPA and permitting in 

the agencies is responsible for many problems in implementing NEPA. Therefore, the key 

reform in the FAST Act is that it grants the authority to use non-appropriated funds to 

augment agency funds in order to complete the required reviews. It also created a Permitting 

Dashboard to track and improve project timeliness. We urge the permitting board to quickly 

implement a system to collect fees from project sponsors, which would address bottlenecks 

by allocating those funds to agencies whose regulatory budgets have been decimated. This is 

especially critical because fear of deep cuts proposed by the Trump administration is 

prompting many qualified staff to leave the federal government. 

Making Fast-41 Work 

Additionally, we have all heard the President talk about launching a trillion-dollar infrastructure 

program. For this to succeed, the permitting board needs close to $30 million to get up and 

running. The House Committee's token appropriation to the board of $1 million is barely 

enough to hire a few staffers and very likely inadequate to carry out its statutory duties in 

hosting the Permitting Dashboard's tracking of projects. 
99 

The permitting board needs strong leadership to improve the permitting process and we 

applaud Senator Portman's and Senator McCaskill's letter urging the President to quickly 

appoint an executive director. The FAST Act gives the executive director significant authority. 

The person selected must have the political skills to bring together the siloed interests within 

the federal family-not just for the purpose of establishing a faster system, but also to ensure 

better environmental outcomes. Leaving in place an acting executive who is not a political 

appointee undercuts the permitting board's ability to get significant cooperation from 

department and agency leaders. 

I would also note that the permitting process and NEPA involve complicated areas of scientific 

disciplines and the law. The executive director must have broad experience and sufficient 

qualifications in order to successfully lead in the implementation of this statute. 

NEPA Attacks Continue 

Despite the enactment of this legislation in 2015, this Congress has seen a large number of 

bills introduced in both houses that would further amend the NEPA process without regard for 

their impact on process changes already made in FAST-41. Rather than simplifying current 

processes, these bills would create new conflicts, sow confusion, and delay project reviews. 

And you can safely bet that these consequences would unfairly be blamed on NEPA. 

Legislation has reached the House floor that would establish different and inconsistent 

permitting and NEPA processes for hydroelectric power projects, water supply projects, 

natural gas pipelines, international pipelines, fisheries management, and other project types. 
100 

The Senate has several similar bills in play. Adopting new measures now would exacerbate 

effective administration of existing law. For example, the Department of Transportation 

(DOT)'s Inspector General confirmed that the agency has been hamstrung by repeated policy 

changes in recent Congresses. Although DOT had completed most of the reforms mandated 

by MAP-21 in 2012, the Department was forced to delay implementation of others because 

they had to be revised to comply with additional requirements of 2015's FAST Act. 2 

The President Trump's first Infrastructure Permitting Executive Order- as Senators Portman 

and McCaskill wrote in a letter to the President- also contradicted authorities and 

responsibilities already in FAST -41, to the consternation of project sponsors that were already 

participating in the permitting board's existing process. Further revisions or regulatory 

changes as the Administration implements FAST-41 will only add confusion and delay 

implementation of it. If the objective is to improve infrastructure project reviews and permitting, 

then right now Congress' most important challenge is to exercise oversight over 

implementation. While we don't applaud everything in the law, its robust provisions were 

enacted less than two years ago. Adding to the law would exacerbate effective administration 

of it. The most valuable action by the Congress would be continued oversight and adequate 

funding of the administrative processes. 

The President's revised Infrastructure Executive Order of August 15, 2017, ameliorated most 

of the inconsistences with the earlier order. However, it also gave a green light to wasteful 

2 Office of the Inspector General, Vulnerabilities Exist in Implementing Initiatives Under MAP-21 Subtitle C to Accelerate 

Project Delivery, March 6, 2017, available at: 

https:Uwww .oig.dot.gov /sites/d efau lt/files/DOT%201mplementation%20of%20MAP-21%5 E3-6-17. pdf 
101 

federal construction in areas susceptible to flooding by revoking an executive order (E.O. 

13690) that previously updated flood protection standards. These standards would make sure 

that public schools, hospitals, military bases, water treatment plants- all public facilities and 

infrastructure built with federal funding -are constructed with a higher margin of safety for 

floods and future sea level rise. Revoking these standards will ensure that billions of dollars 

are wasted rebuilding vulnerable public facilities that could have been built more safely or in a 

safer location. 

We Cannot "Streamline" Our Way Out of Lack of Funding 

I cannot conclude without noting that the emphasis on "streamlining" seems to be a 

diversionary tactic from the real problem of our failing infrastructure. Our airports, our 

transportation system, our sewer and drinking water systems have been systematically 

underfunded since 1993, when the gas tax was last raised. Since that time, inflation has 

eroded the Transportation Trust Fund by over 40 percent. The funding for sewers and 

drinking water systems have suffered similar erosion. Any world traveler, and in fact, 

President Trump himself, has noted that the airports and roads of our country now suffer in 

comparison to other developed and even some developing countries. Again, this is because 

of a lack of adequate funding. 

Rather than addressing the real issue of funding, Administration officials and Members of 

Congress complain about the requirement for federal permits and environmental reviews. 

Senators, we cannot streamline our way out of our infrastructure problem. Countries all over 
102 

the world -including those with better infrastructure than our own -have adopted statutes 

based on our NEPA statute; bullet trains, modern subways, and efficient airports around the 

world have been built subject to NEPA-Iike requirements. What these countries have that the 

United States currently lacks is a national commitment to adequately funding infrastructure to 

compete in the 21st century. 

I want to thank Senator Portman and Senator McCaskill for working to find reasonable and 

responsible fixes to the NEPA process. We support your ongoing efforts to ensure that your 

legislation is fully implemented, and that it improves the quality of reviews and leads to better 

environment outcomes without unnecessary delays. 

NRDC stands ready to assist this Committee in its further deliberations. Thank you again for 

the opportunity to participate in this hearing and !look forward to your questions. 
103 

TESTIMONY OF 

JANET PFLEEGER 

Acting Executive Director 

Federal Permitting Improvement Steering Council 

For a Hearing 

BEFORE 

U.S. Senate 

Homeland Security and Governmental Affairs Committee 

Permanent Subcommittee on Investigations 

ON 

"Cutting Through the Red Tape: Oversight of Federal Infrastructure Permitting 

and the Federal Permitting Improvement Steering Council"' 

September 7, 2017 

Washington, D.C. 
104 

Chairman Portman, Ranking Member Carper, and distinguished Members of the Subcommittee, 

thank you for the opportunity to appear before you today to discuss the progress of the Federal 

Permitting Improvement Steering Council (the "Permitting Council") in improving the efficiency 

and timeliness of the Federal permitting process for infrastructure projects through increased 

transparency, predictability, and accountability. 

The Permitting Council's work to create a more standardized, predictable permitting process that 

protects public health, safety and the environment focuses on: conducting project-specific 

coordination to ensure multi-agency collaboration for large and complex infrastructure projects; 

incorporating best practices identified by industry and government into the Federal permitting 

process; and establishing recommended performance schedules for use by agencies in 

developing permitting timetables with target completion dates. 

The Permitting Council is actively working with the Administration to improve the permitting 

process for infrastructure projects. On August 15, 2017, President Trump signed Executive Order 

(E.O.) 13807, entitled "Establishing Discipline and Accountability in the Environmental Review 

and Permitting Process for Infrastructure Projects," in which the Permitting Council has several 

prominent roles and responsibilities. This E.O. will further enhance the work of the Permitting 

Council through the establishment of a "One Federal Decision" policy for major infrastructure 

projects classified under the National Environmental Policy Act as requiring an Environmental 

Impact Statement. The framework for implementing ''One Federal Decision" will be developed 

in consultation with the Permitting Council. The E.O. also requires agencies to establish an 

accountability and tracking system to ensure the project review schedules are met, the guidance 

for which will be issued in consultation with the Permitting Council. 

Chairman Portman, as you emphasized in our June Council meeting, the Permitting Council is 

uniquely positioned to transform Federal permitting practices by implementing Title 41 of the 

Fixing America Surface Transportation Act (FAST-41 ). FAST-41 allows the Permitting Council 

to oversee the Federal permitting process for covered products in the U.S. that require 

authorization or environmental review by a federal agency, including National Environmental 

Policy Act (NEPA) reviews. The Council has had recent successes in both systematic and 

project-specific permitting process improvements. 
105 

Implementation of FAST-41 began soon after the law was enacted through recruitment of an 

Executive Director to oversee the permitting improvement process, designation of the General 

Services Administration as the agency to provide administrative support, initiation of 

enhancements to the Permitting Dashboard to address FAST 41 requirements, and establishment 

of a physical Permitting Council office. With initial funding from interagency contributions for 

Cross-Agency Priority (CAP) Goal tlmding. the Office of the Executive Director, in cooperation 

with Permitting Council agencies, has made significant progress in establishing the FAST-41 

governance structure: 

I. Permitting Council agencies have appointed both Council members and senior-level staff 

to serve as Chief Environmental Review and Permitting Officers (agency CERPOs). 

These agency leaders have taken a proactive role in F AST-41 implementation and 

success. With an eye toward enhanced transparency and accountability, the CERPO 

appointments have been posted on the publicly-available Permitting Dashboard. 

2. In 2016, the Permitting Council released an initial inventory of 34 infrastructure projects 

considered to be "covered projects" under the requirements of FAST-41. FAST-41 

covered projects may include large infrastructure projects such as roads, bridges, 

pipelines, and energy production, or projects which are likely to benefit from designation 

as "covered projects." 

3. The inventory of all covered projects, including project specific permitting timetables 

with target completion dates, is posted on the publicly-available Permitting Dashboard 

for an unprecedented degree of transparency and accountability. The Dashboard serves 

as a key FAST-41 tool for tracking permitting timetables and keeping projects on 

schedule. 

4. Permitting Council agencies have developed inter-agency Coordinated Project Plans 

(CPPs) for covered projects. CPPs promote inter-agency problem solving, accountability 

and predictability by identifying lead, cooperating, and participating agencies for the 

project; all Federal environmental reviews and authorizations required for the project and 

associated target completion dates; a discussion of potential avoidance, minimization, and 

mitigation strategies; and plans for public and tribal outreach and coordination. 

5. In January of2017, the Permitting Council Office of the Executive Director hired three 

full-time career federal staff and five contract support employees. 
106 

6. In January of20 17, the Office of Management and Budget (OMB) and the Council on 

Environmental Quality (CEQ), in coordination with the Permitting Council, jointly issued 

guidance for agencies to carry out their responsibilities under FAST-41. In addition to 

addressing statutory requirements, the guidance introduced a framework for tracking 

covered projects on the Permitting Dashboard. 

7. The Permitting Council participated in multiple tribal consultations conducted by the US 

Department of Justice, US Army, and US Department of the Interior to identify 

additional opportunities to improve the infrastructure permitting process. Following these 

consultations, a report called Improving Tribal Consultation and Tribal Input in Federal 

Infi'astructure Decisions was produced in January of2017. 

8. Most recently, the Permitting Council received additional support and responsibilities 

from the President in E.O. 13807 of August 15,2017. In addition to several prominent 

roles in the process enhancements required under the E.O., the General Services 

Administration (GSA), which was recently included as an official member agency to the 

Permitting Council, is identified as the agency to provide the necessary administrative 

and organizational support to the Permitting Council, unless otherwise determined by the 

Director of the Office of Management and Budget (OMB). 

I was hired as Deputy Director in the Permitting Council's Office of the Executive Director in 

January of2017 and have been serving as Acting Executive Director since January 20, 2017. 

From my first day, I have sought to improve the permi!ting process by focusing on four main 

areas: transparency and accountability; project specific coordination and dispute resolution; 

interagency coordination. collaboration, and technical support; and stakeholder outreach. 

Transparency and Accountability: Permitting Dashboard and Coordinated Project Plans 

(CPPs) 

The permitting timetable developed in every project's CPP is made public on the Permitting 

Dashboard. The Permitting Dashboard serves as a single point of reference for information on 

covered projects, where anyone can view the timetable schedule and status for all the 

environmental reviews and authorizations required for any covered project. The Office of the 
107 

Executive Director, in cooperation with the Permitting Council, is improving the quality and 

usefulness of the Permitting Dashboard in the following ways: 

Since the beginning of20 17, the Office of the Executive Director has worked with 

Permitting Council agencies to improve the data accuracy and completeness of permitting 

timetables to the Dashboard. Following the March and June 2017 quarterly updates, the 

Oftice ofthe Executive Director provided each agency with a data assessment from 

which to track agency progress in publishing the requisite data to the Dashboard, and 

now is ensuring Dashboard administrators fully understand the requirements and have the 

necessary training to meet these Dashboard requirements. Complete Dashboard data not 

only is key to transparency and accountability in the permitting process, but is essential 

for collecting two years of baseline data for use in developing recommended performance 

schedules that agencies can use in the future to establish their permitting timetables. 

o The Office of the Executive Director continues to improve the Permitting Dashboard, 

with technical support from the Depmtment of Transportation, through enhancements 

such as automated notifications to agencies when authorization deadlines are approaching 

or when a deadline is being changed. 

o New dynamic reporting and visualization enhancements for the Dashboard are planned to 

better allow users to view criteria and learn how federal agencies are performing in 

critical areas. Project sponsors and the public will be able to track how projects are 

progressing through visualizations controlled by user-selected data fields. Agencies will 

be able to report on their effectiveness and every covered project's status will be 

displayed through a color-coded system. 

o The Dashboard is a useful tool for Federal agencies, project sponsors, and interested 

members of the public to track the environmental reviews and authorizations required for 

large or complex infrastructure projects. The Dashboard currently tracks all covered 

projects under FAST-41 as well as projects subject to 23 U.S.C. 139 under the authority 

of the U.S. Department ofTransportation (USDOT). E.O. 13807 reinforces this practice 

by the US DOT and requires milestone dates for all projects tracked on the Dashboard to 

be updated monthly, or on another appropriate timeline as determined by the Executive 

Director. The E.O. also allows for other projects or classes of projects to be tracked on 

the Dashboard at the discretion of the Executive Director. 
108 

In addition to being a tool for transparency and accountability, the Dashboard plays an important 

role in process improvements. FAST-41 requires Executive Director approval for certain 

modifications to the Permitting Dashboard timetables. These approvals help the agencies and 

Executive Director identify issues specific to a particular project, and with time, recurring 

bottlenecks for overlapping or contingent permitting processes. 

The permitting timetable posted to the Dashboard is only part of the CPP, which establishes a 

concise plan for coordinating public and agency participation in, and completion of, any required 

Federal environmental review and authorization for the project. The CPP therefore serves as the 

foundation for interagency coordination, early identification of difficulties and issues that could 

delay Federal decision-making, and verification of implementation of best practices. To facilitate 

effective and timely decision-making, the Office of the Executive Director, in cooperation with 

the Permitting Council, is improving the quality and usefulness of CPPs in the following ways: 

• A CPP template has been developed, primarily for use in new covered projects, but 

recommended and available for use tor all current covered projects. 

• The Office of the Executive Director is meeting with each agency serving in a lead and 

cooperating agency role on a covered project to discuss remaining work for CPPs to be 

deemed accurate and complete. 

• The Office of the Executive Director reviews CPPs for ongoing projects in its FAST-41 

oversight role and, when necessary, brings together Federal agencies to ensure that they 

are using the most efficient and etTective permitting processes available that are then 

reflected in the CPPs. The Office of the Executive Director will also participate in the 

development ofCPPs for new projects on an as needed basis to ensure that early 

coordination and potential issue identification takes place at the start ofthe FAST-41 

process. 

Project-Specific Coordination and Dispute Resolution 

The Office of the Executive Director conducts project-specific agency and project sponsor 

coordination and implements the FAST-41 dispute resolution provisions to ensure successful 
109 

implementation of permitting timetables for covered projects. Initial examples of projectspecific issues identified and addressed through the implementation of FAST-4 I include: 

Project sponsors have contacted the Executive Director for help with project specific 

issues-for instance, when an agency did not respond to their questions, when different 

staff within an agency provided contradictory responses, and when different agencies 

working together on a project provided conflicting information. ln these situations, my 

office has been able to intervene when communication within and among agencies breaks 

down to facilitate and resolve a misunderstanding, disagreement, or dispute. 

The Office of the Executive Director has facilitated conflict resolution between agency 

headquarters and field offices to coordinate and deliver consistent information to project 

sponsors. 

The Office of the Executive Director worked with an agency whose ineflicient internal 

environmental review process did not comply with the agency's responsibilities under 

FAST-41. The corrected, more efficient review process resulted in a 6-8 week shorter 

environmental review period. 

Upon advice from our office, multiple field otlices within a single agency performed a 

pre-meeting collaboration and, for the tirst time for a covered project, met with the 

project sponsor with one voice. Ensuring coordinated decision making among district and 

field oftices facilitated information sharing and enhanced predictability for project 

sponsors. 

• The Office of the Executive Director has convened meetings with agencies tacing 

unusual circumstances outside of their control to identify and implement creative 

solutions to keep the permitting process on schedule while ensuring that those agencies' 

statutory responsibilities are not compromised. 

Additionally, E.O. I 3807 establishes new policies that will further enhance dispute resolution 

for all major infrastructure projects. The E.O. requires agencies to automatically elevate 

instances where a milestone is missed, or anticipated to be missed, to appropriate senior agency 

officials of the lead Federal agency and the cooperating and participating Federal agency or 

agencies to which the milestone applies. E.O. 13807 authorizes CEQ to mediate interagency 

disputes concerning Federal environmental review or authorization decisions upon the request of 
110 

a Federal lead, cooperating, or participating agency, except where dispute resolution processes 

are otherwise provided for in law, such as FAST-41. The Permitting Council Executive Director 

remains the established point of contact, or "one stop shop," for project sponsors and government 

agencies to request assistance in resolving an issue or initiating the formal dispute resolution 

process for covered projects under FAST-41. The E.O. further authorizes the Executive Director 

to, upon request of a project sponsor or Permitting Council member agency. work with the lead 

agency or any cooperating and participating agencies to facilitate the environmental review and 

authorization process for any infrastructure project, regardless of whether the project is a 

"covered project" under FAST-41. 

Interagency Coordination, Collaboration, and Technical Support 

The Permitting Council's Office of the Executive Director is leading the effort to implement one 

of the FAST-41 cornerstones for systematic change to the permitting process: best practices. This 

is accomplished through the Best Practices Report, in which the Permitting Council issues 

recommendations on best practices for environmental reviews and authorizations common to 

covered projects. It is through agency-wide implementation of these best practices that 

improvements in the permitting process will be realized. 

• The Permitting Council's first Best Practices Report was published in January 2017, and 

provides a compendium of established best practices for each of the eight categories of 

best practices identitled in FAST-41. 

Preparation of the Permitting Council's second Best Practices Report is underway and 

builds on the January 2017 Best Practices Report by identifying those best practices that 

can be implemented across agencies for maximum impact in addressing common 

stakeholder concerns. This report, to be published in December 2017, will serve as the 

roadmap for systematic permitting process improvement as Permitting Council agencies 

implement and institutionalize these best practices during fiscal year 2018 at all levels 

within their organizations, including critical field offices that interact with project 

sponsors on a regular basis. 
111 

The Office of the Executive Director submits an annual report to Congress every April assessing 

agency progress in making improvements consistent with best practices. 

• The Office of the Executive Director's FY 2016 Annual Report to Congress was 

published in April of2017. 

• Preparation of the assessment tool to be utilized for the FY 2017 Annual Report to 

Congress (due in April 20 18), is currently underway and will assess agency progress 

in implementing best practices identified in the January 2017 Best Practices Report. 

Through weekly meetings of the Permitting Council Working Group, monthly CERPO meetings, 

and quarterly Council meetings, agencies collaborate and share lessons learned from best 

practices to help other agencies establish their own effective programs. Agencies also are able to 

share feedback from stakeholders on how to improve the permitting process. For example, the 

Advisory Council on Historic Preservation issued a report on Improving Tribal Consultation in 

Infrastructure Projects (May 2017) to provide recommendations for improving tribal consultation 

in the Section 106 of the National Historic Preservation Act review process for federal 

infrastructure decisions. This report is a companion to the January 2017 Improving Tribal 

Consultation and Tribal Input in Federallnfrastructure Decisions report. 

E.O. 13807 reinforces the implementation of these best practices by directing agencies to 

implement appropriate best practices identified by the Permitting Council and to ensure that such 

implementation is established at the agencies' field level. 

The Permitting Council continues to develop policies and procedures to govern the 

implementation of FAST -41. For example, when the Permitting Council received its first FAST41 application from a Project Sponsor to become a covered project, there was no defined process 

to make the determination as to whether that project would be a covered project. The Office of 

the Executive Director, in cooperation with the Permitting Council, is nearing completion of a set 

of procedures that clarify how a project sponsor's application is processed and evaluated to meet 

the statutorily required 14 day deadline. 
112 

Stakeholder Outreach 

The Permitting Council continues to engage in education and outreach efforts with stakeholders 

and to meet with groups and individuals representing state, local, and tribal governments 

engaged in the infrastructure permitting process. These etTorts are building sustainable 

relationships and increasing engagement in the Permitting Council's efforts to improve the 

infrastructure permitting process. Specific outreach efforts include meetings with: 

Current and potential project sponsors- individual meetings with current project sponsors 

as well as outreach and education to potential project sponsors through industry and trade 

organization events, industry panels, and infrastructure-themed conferences; 

State government representatives- Environmental Council of the States (State 

Environmental Protection Meeting) and State Historic Preservation Officers (Permitting 

Dashboard Training; similar training planned for Tribal Historic Preservation Officers); 

Tribal entities- National Tribal Preservation Conference; 

Local government representatives- National Association of Counties Annual Conference, 

including meeting with the Western Interstate Region; and 

• Non-Governmental Organizations - individual meetings and infrastructure-themcd 

meetings, workshops, and conferences. 

Conclusion 

I am proud to say that the Permitting Council has made significant progress across the board in 

each of these priority areas. We are already beginning to observe improved transparency, 

predictability, and accountability in our covered projects in the form of avoided delays in the 

permitting process. As more projects elect to use the FAST-41 process, these benefits will 

increase substantially. 

FAST-41 is not the first time the Federal government has tried to reform the permitting process, 

but this is the first time the framework to accomplish real reform is in place. Chairman Portman, 

because of your leadership, the Permitting Council Office of the Executive Director is positioned 

to truly change the siloed nature of the permitting process. Additionally, the Permitting Council 

is poised to play a major role in the Administration's Infrastructure Initiative, and is actively 
113 

working with the Administration on the implementation of FAST-4! and Executive Order 

13807. 

Going forward, in addition to the reforms and activities mentioned above, our office intends to 

be fully engaged with agencies and project sponsors to improve the process for permitting 

decision making. Our capacity and resources over the next year, including fully funding the FY 

2018 President's Budget request of$! 0 million for the Environmental Review Improvement 

Fund in the General Services Administration appropriation, will determine our ability to scale up 

and provide the promised benefits to covered projects, including enhancement of the Permitting 

Dashboard. FAST-41 provides the authority to issue fee regulations and the Permitting Council 

is working together to take advantage of this important tool provided by statute. 

I thank you for the opportunity to testify before the Subcommittee today, and I welcome your 

questions and the opportunity to further discuss how we can work with Congress to make this 

unprecedented opportunity for transformational change a reality. 
114 

Testimony of 

Terry L. Turpin 

Director, Office of Energy Projects 

Federal Energy Regulatory Commission 

888 First Street, N.E. Washington, DC, 20426 

Committee on Homeland Security and Government Affairs 

Permanent Subcommittee on Investigations 

United States Senate 

Hearing on "Cutting Through the Red Tape: Oversight of Federal Infrastructure 

Permitting and the Federal Permitting Improvement Steering Council" 

Septem bcr 7, 2017 
115 

Chairman Portman, Ranking Member Carper, and Members of the Subcommittee: 

My name is Terry Turpin and I am the Director of the Office of Energy Projects at 

the Federal Energy Regulatory Commission. The Oflice is responsible for taking a lead 

role in carrying out the Commission's responsibilities in siting infrastructure projects 

including: (1) licensing, administration, and safety of non-federal hydropower projects; (2) 

authorization of interstate natural gas pipelines and storage facilities; and (3) authorization 

of liquefied natural gas (LNG) terminals. 

I appreciate the opportunity to appear before you to discuss federal infrastructure 

permitting and the Federal Pennitting Improvement Steering Council (Council). As a 

member of the Commission's staff, the views I express in this testimony are my own, and 

not necessarily those of the Commission or of any individual Commissioner. 

I will start by outlining the Commission's hydropower and natural gas programs and 

then turn to the Federal Permitting Improvement Steering Council. 

I. The Commission's Hydropower Program 

The Commission regulates over 1,600 non-federal hydropower projects at over 

2,500 dams, pursuant to Part I of the Federal Power Act (FPA). Together, these projects 

represent about 56 gigawatts of hydropower capacity, which is more than half of all the 

hydropower capacity in the United States. Public and private hydropower capacity together 

total about 8 percent of U.S. electric generation capacity. 
116 

Under the FPA, non-federal hydropower projects must be licensed by the 

Commission if they: (I) are located on a navigable waterway; (2) occupy federal land; (3) 

use surplus water from a federal dam; or (4) are located on non-navigable waters over 

which Congress has jurisdiction under the Commerce Clause, involve post-1935 

construction, and affect interstate or foreign commerce. 

The FPA authorizes the Commission to issue licenses for projects within its 

jurisdiction, and exemptions (which are actually a simpler form of license) tor projects that 

would be located at existing dams or within conduits as long as these projects meet specific 

criteria. Licenses are issued for terms of between 30 and 50 years and may be renewed. 

Exemptions are perpetual and do not need to be renewed. 

The Commission also must ensure compliance with other statutes, each containing 

its own procedural and substantive requirements, including: the Coastal Zone Management 

Act; the Endangered Species Act; the Wild and Scenic Rivers Act; and the National 

Historic Preservation Act. 

The Commission has established three licensing processes and allows an applicant to 

request the process that it believes to be best suited to its individual situation. All of these 

processes, which involve specified procedural steps, are transparent and involve extensive 

coordination among the applicant, Commission staff, Indian Tribes, state and federal 

agencies, and other stakeholders. 

The integrated licensing process, which front loads issue identification and decisions 

on information needs to the period before an application is filed, is suited to the more 

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117 

complex or controversial cases. The alternative licensing process allows participants 

significant t1exibility to tailor the licensing process in a manner that can work well in their 

particular case. The traditional licensing process typically works best for less complex or 

controversial projects and is the process used for exemptions. 

The Commission's hydropower processes give stakeholders the opportunity to 

participate in collaborative, public proceedings, where all significant issues are identified 

and studied. Commission staft~ consistent with the Commission's role as lead agency, 

develops detailed, thorough environmental analyses, pursuant to the FPA and the National 

Environmental Policy Act (NEP A). Stakeholders are afforded numerous opportunities to 

provide the Commission with information, comments, and recommendations. While the 

Commission's regulations establish detailed procedures, Commission staff may waive 

regulations or revise procedures where doing so will lead to the more efficient and 

cost-effective processing of an application. 

Statutory requirements also give other agencies a significant role in the licensing 

process, limiting the Commission's control of the cost, timing, and efficiency of licensing. 

For example, if a project is located on U.S. lands such as a national forest, section 4(e) of 

the FP A authorizes the federal land managing agency to impose mandatory conditions to 

protect those lands. Section 18 of the FP A gives authority to the Secretaries of the 

Departments of the Interior and Commerce to prescribe fishways. With respect to 

exemptions, section 30(c) of the FPA allows federal and state agencies to impose 

conditions to protect tish and wildlife resources. In addition, section 401(a)(l) of the Clean 

Water Act precludes the Commission from issuing a final license for a hydroelectric project 

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until the project has tlrst obtained a water quality certitlcation, or a waiver thereof, and 

requires the Commission to adopt all conditions contained in the water quality certitlcation. 

There are instances where Commission sta!I has completed its analysis of a hydroelectric 

project but tina! Commission action on the application has been delayed, sometimes for 

years, awaiting the issuance by a state, acting under delegated federal authority, of a water 

quality certitlcation under the Clean Water Act. 

In addition to licensing projects and issuing exemptions, the Commission is 

responsible for ensuring compliance with license and exemption conditions during the life 

of regulated projects. The Commission also maintains a strong, effective program of 

inspecting jurisdictional dams to ensure that human life and property are kept safe. 

II. The Commission's Natural Gas Program 

The Commission is responsible for authorizing the construction and operation of 

interstate natural gas pipeline and storage facilities under section 7 of the Natural Gas Act 

(NGA) and, under section 3 of the NGA, for authorizing the construction and operation of 

facilities necessary for either the impmt or export of natural gas by pipeline, or by sea as 

LNG. Authorizations for the import or export of the commodity of natural gas, including 

LNG, are issued by the Department of Energy. 

As part of its responsibilities, the Commission conducts both a non-enviromnental 

and an environmental review of proposed natural gas projects. The non-environmental 

review focuses on a project's engineering design, market demand, costs, rates, and 

consistency with the Commission's regulations and policies. Under the NGA, the 

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119 

Commission acts as the lead agency for the purposes of coordinating all applicable federal 

authorizations, including, but not limited to, those issued under the Endangered Species 

Act, National Historic Preservation Act, Clean Water Act, Clean Air Act, and Coastal Zone 

Management Act, as well as for the purposes of complying with NEPA. Congress has 

instructed each federal and state agency considering an aspect of an application for federal 

authorization to work with the Commission and to comply with the deadlines established 

by the Commission, unless a schedule is otherwise established by federal law. Commission 

staff establishes a publicly noticed schedule for all decisions or actions taken by other 

federal agencies and/or state agencies acting under delegated federal authority. 

The environmental review, pursuant to NEPA, is carried out through a process that 

encourages cooperation from federal, state, and local agencies, and Indian Tribes and that 

provides for the input of other interested stakeholders. There arc several distinct phases in 

the Commission's review process for interstate natural gas facilities under sections 3 and 7 

of the NGA: 

Project Preparation: the project sponsor identifies customers and markets, 

defines a proposed project, and identifies potentially affected federal and state 

agencies and Indian Tribes in the project area, prior to formally engaging 

Commission staff; 

• Pre-Filing Review: Commission staff begins working on the environmental 

review and engages with stakeholders, including agencies, with the goal of 

identifying and resolving issues before the filing of an application; 

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120 

• Application Review: the project sponsor files an application with the 

Commission under NGA section 7 for interstate pipeline and storage facilities 

and/or under NGA section 3 for import or export facilities. Commission staff 

prepares an environmental review document, analyzes the non-environmental 

aspects of projects related to the public interest detennination, and prepares an 

order for Commission consideration; and 

• Post-Authorization Compliance: Following issuance of a Commission order 

approving a project, Commission staff works with the project sponsor and 

stakeholders, including agencies and Tribes, to ensure compliance during 

construction with environmental and other conditions included in the order. 

The Commission's natural gas project review processes are thorough, efficient, and 

have resulted in the timely approval of interstate natural gas pipelines, LNG facilities, and 

facilities at our international borders for the import or export of natural gas. Since 2000, 

the Commission has authorized nearly 18,000 miles of interstate natural gas transmission 

pipeline totaling more than 159 billion cubic feet per day of transportation capacity, over 

one trillion cubic feet of interstate storage capacity, and 23 facility sites for the import and 

export of LNG. Over the past ten years, the Commission has also issued 15 NGA section 3 

authorizations and Presidential Permits for border crossing facilities. 

The Commission's practices allow for a systematic, efficient, and collaborative 

process, and have resulted in substantial additions to the nation's natural gas infrastructure. 

6 
121 

III. FAST-41 

The Fixing America's Surface Transportation Act was enacted on December 4, 

2015. Title 41 of that act (FAST-41) established new coordination and oversight 

procedures for infrastructure projects being reviewed by federal agencies. FAST-41 is 

intended to: 

• improve early consultation and coordination among government agencies; 

• increase transparency through the publication of project-specific timetables with 

completion dates for all federal environmental reviews and authorizations; and 

increase accountability through consultation and reporting on delayed projects. 

FAST -41 establishes a governance structure, including the creation of the Council, 

to deal with permitting issues on complex infrastmcture projects and to establish best 

practices for the permitting process. The heads of various cabinet-level departments, as 

well as the Chairmen of the Commission and the Nuclear Regulatory Commission, are 

required to designate representatives to the Council. As of February 17, 2017, I have been 

the Commission's designated Councilmember and Heather Campbell, Senior Policy 

Advisor and the Commission's Federal Preservation Officer, has been the Commission's 

Chief Environmental Review and Permitting Officer (CERPO). 

To be eligible for FAST-41, a proposal must meet the definition of a "covered 

project" under the statute. As relevant to the Commission, a covered project is one that: 

(I) involves the construction of a non-federal hydropower facility, interstate natural gas 

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122 

pipeline, or LNG terminal that is subject to NEPA; and (2) is likely to require a total 

investment of more than $200,000,000. 

To establish the initial inventory ofFAST-41 projects, Commission staff identified 

all projects pending Commission review as of March 3, 2016 that met the definition of a 

covered project. The Executive Director of the Council then compiled a list of eligible 

projects from across the federal government and, on September 22, 2016, established an 

inventory of 34 covered projects, including 13 Commission-jurisdictional projects ( 4 

hydroelectric projects, 7 natural gas pipeline projects, and 2 LNG terminal projects). Since 

the establishment of the inventory, the Commission has issued licenses for three of the 

hydroelectric projects and has issued certificates for two of the natural gas projects. For 

new projects to be added to the inventory, a sponsor must voluntarily submit a notice for 

consideration. To date there has been one FERC jurisdictional project that has requested 

and been approved to become a new covered project under FAST -41. 

Since FAST -41 was enacted, Commission staff has attended all meetings of the 

Council and of agency CERPOs. In addition, staff has regularly participated in various 

FAST-41 working groups, including the Interagency Working Group, the Fees Working 

Group, and the Information Technology Working Group. Further, staff has assisted in the 

preparation of a number ofF AST -41 related documents, including: OMB-CEQ 

Implementation Guidance (January 13, 20 17); Best Management Practices Report (January 

18, 2017); Performance Targets Report (January 18, 2017); and an Annual Report to 

Congress (April 15, 20 17). 

8 
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Commission staff has taken additional actions of consulting with other agencies to 

create a "Coordinated Project Plan" for each of the covered Commission projects; creating 

project-specific webpages that include timetables and other project information; and 

updating the Council on the status of projects pending before the Commission. Moreover, 

staff has met on a number of occasions with Council staff to discuss both general issues 

related to the implementation of FAST -41 and specific issues regarding individual projects. 

To a great extent, the process established by FAST-41 mirrors the Commission's 

established transparent, collaborative procedures, resulting in consistency of the 

Commission's actions with FAST-41's requirements, including those associated with early 

coordination and consultation. Commission staff is committed to continuing to work with 

the Council to assist in the successful implementation ofFAST-41 and to mesh the new 

FAST-41 procedures with the Commission's existing procedures, thereby ensuring the 

most efficient, effective possible processing of energy infrastructure matters before the 

Commission. 

IV. Conclusion 

This concludes my remarks. I would be pleased to answer any questions you may 

have. 

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124 

DEPARTMENT OF THE ARMY 

COMPLETE STATEMENT OF 

ROBYN S. COLOSIMO 

ASSISTANT FOR WATER RESOURCES POLICY 

OFFICE OF THE ASSIST ANT SECRETARY OF THE ARMY 

(CIVIL WORKS) 

BEFORE 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL 

AFFAIRS 

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

UNITED STATES SENATE 

ON 

The Federal Permitting Process for Major Infrastructure Projects, 

Including the Progress Made by the Federal Permitting Improvement 

Steering Council 

SEPTEMBER 7, 2017 
125 

Chairman Portman, Ranking Member Carper and distinguished member of the 

Subcommittee, I am Robyn Colosimo, Assistant for Water Resources Policy, in the 

Office of the Assistant Secretary of the Army for Civil Works. Thank you for the 

opportunity to discuss the U.S. Army Corps of Engineers (Corps) water resources 

infrastructure projects and the Regulatory Program within the context of Title 41 of the 

"Fixing America's Surface Transportation Act," (P. L. 114-94) (FAST-41). 

The underlying objective of the FAST-41 provisions is to improve the Federal permitting 

process for infrastructure projects by integrating and streamlining Federal agency 

processes relevant to permits, approvals, determinations, and permissions. The Corps 

fully supports this objective. 

The Corps strives to provide timely and efficient decision making both for the 

development of its water resources infrastructure projects and for applicants that may 

seek approval under one of its regulatory authorities with respect to the construction of 

an infrastructure project. The Corps fosters deliberate and open communication with 

applicants that request permits from the Regulatory Program under Section 10 of the 

Rivers and Harbors Act and/or Section 404 of the Clean Water Act or request 

permission to modify or alter authorized water resources development projects under 

Title 33 of the U.S. Code, Section 408. The Corps also engages early and often with its 

sister Federal agencies to seek their feedback and synchronize their review with its 

decision making process involving infrastructure project proposals. 

For several years, the Corps has been sharing best practices from its Regulatory 

Program with other Federal agencies, including on the use of general permits, and on 

the synchronization of review processes, which was memorialized by the September 

2015 release of the handbook entitled "Synchronizing Reviews for Transportation and 

Other Infrastructure Projects," also known as the Red Book. The Corps also has 

supported transparency and accountability, for example, by working with other agencies 

to provide permitting timelines for projects on the Infrastructure Permitting Dashboard. 

Starting in 2016, the Corps has been actively working with the Federal Permitting 

Improvement Steering Council (FPISC) and its member agencies to provide information 

on its Regulatory Program tools, databases, and codified decision-making procedures. 

The Regulatory Program utilizes a streamlined efficient permitting process for the 

majority of activities it reviews. GPs are available where the proposed activity is minor, 

in terms of its anticipated impacts on aquatic resources. GPs reduce the time and 

therefore cost to the applicant of preparing an application and reduce the time and cost 

to the Corps of reviewing the application. In FY 2016, 94% of the Corps permit 

workload was processed by GPs, and 87% of GPs were issued in 60 days or less. GPs 

enable the Corps districts to focus on proposed activities that are more likely to have the 

potential for substantial adverse environmental impacts on aquatic resources, and 

therefore to require a more detailed project specific review. For applicants proposing 

such activities, the process involves submitting an individual permit (IP). Of the activities 

requiring IPs, 58% were issued within 120 days of receipt of a complete application. 

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The Corps has actively engaged with FPISC and other member agencies in the 

development of the implementation guidance for FAST-41. It is important to note the 

scope of covered projects under FAST-41 generally applies only to certain infrastructure 

proposals that are subject to the National Environmental Policy Act (NEPA), likely to 

require an investment of more than $200 million, and do not qualify for abbreviated 

authorization or environmental processes under any applicable law (the objective 

category); or are subject to NEPA and the size and complexity, in the opinion of the 

FPSIC Council, make the projects likely to benefit from enhanced oversight and 

coordination, including projects likely to require authorization from or environmental 

review involving more than two Federal agencies or the preparation of an environmental 

impact statement under NEPA (the discretionary category). Based on the experience of 

the Corps with the additional cost to the government for compliance with the FAST -41 

coordination and procedures, an expansion in the applicability of FAST-41 could have 

the unintended consequence of degrading the level of service provided to the rest of the 

regulated public. The Corps processes approximately 80,000 permit actions per year. 

The Corps staff at all levels of the organization have worked expeditiously in the 

implementation of FAST-41. We are continuing to work at further improvements to 

facilitate implementation of the Act such as automating data entry to the extent possible 

by making the Federal Infrastructure Dashboard compatible with existing agency 

websites that track some of the data required on the dashboard. 

It may also help to clarify that FAST-41 is most beneficial to those projects where the 

Federal government has a substantial role in permitting or approving the project, but 

which does not already qualify for abbreviated authorization or environmental review 

processes under other statutes. For example, there may be large infrastructure projects 

that meet FAST-41 criteria for listing as a covered project, but the Federal government 

may only have a role in the review of an ancillary component of the larger infrastructure 

project, the review of which is already abbreviated, using existing authorities such as 

the Corps Nationwide Permits Program under the Clean Water Act. 

Thank you for the opportunity to share the Corps experience and perspectives on 

implementation of FAST -41. We look forward to continuing to support FPISC and other 

member agencies on sharing of best practices and greater efficiency and transparency 

in our review of infrastructure projects. 

3 
127 

Testimony of Gary Frazer, Assistant Director for Ecological Services, 

U.S. Fish and Wildlife Service, Department of the Interior 

before the Senate Committee on Homeland Security and Governmental Affairs, 

Permanent Subcommittee on Investigations 

"Cutting Through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

Good morning Chairman Portman, Ranking Member Carper, and Members of the Subcommittee. 

I am Gary Frazer, Assistant Director for Ecological Services at the U.S. Fish and Wildlife 

Service (Service). I appreciate the opportunity to testify today on the Service's work in the 

implementation ofTitle 41 of the Fixing America's Surface Transportation (FAST) Act. 

Background 

The FAST Act includes provisions aimed at improving the transparency, predictability, and 

timeliness of Federal environmental review and permitting processes for major infrastructure 

projects. Specifically, Title 41 of the Act (FAST-41) addresses improvements to the Federal 

permitting process tor certain types of projects, including large and complex energy production, 

electricity transmission, water resource, pipeline, and transportation projects, among others. 

FAST-41 focuses on improved coordination between Federal agencies and created the Federal 

Permitting Improvement Steering Council (Council) to oversee the agency coordination process 

for covered infi·astructure projects. The FAST Act was signed into law on December 4, 2015 

and is still in the initial phases of implementation. The Service is committed to carrying out our 

responsibilities under the law and fult111ing Secretary Zinke's priority of making environmental 

review and permitting processes more efficient. 

U.S. Fish and Wildlife Service's Role Under FAST-41 

The Service is responsible for reviewing and permitting projects under a number of statutory 

authorities, including the Endangered Species Act (ESA), National Environmental Policy Act 

(NEPA), and Fish and Wildlife Coordination Act. The Service's role is to facilitate the 

development and approval of environmentally sound infrastructure projects. The Service works 

with project proponents and partner agencies to help avoid and minimize harm to fish and 

wildlife, and to offset those impacts that are unavoidable. The goal is to facilitate these 

important projects while ensuring that each complies with Federal law. 

The Service typically carries out these activities in the field as a participating or coordinating 

agency under FAST-41, working with the lead agency for a project in reviewing and 

commenting or consulting on the project plan within set deadlines. We engage at the national 

level to advise the Council in identifying and implementing best practices and policies related to 

FAST-4!. 
128 

The overwhelming majority of the Service's actions are carried out at the field level. The 

Service's local field staff have in-depth knowledge of the ecosystems in which they work and the 

species that inhabit them, bringing expertise to project reviews to facilitate efficient, projectspecific analyses. Larger and more complex projects, like those covered by FAST-41, may fall 

under the jurisdiction of multiple field or regional offices. As we move forward with the 

implementation of FAST -41, we will be reviewing our processes to maximize our effectiveness 

in conducting consultations and project evaluations spanning multiple field and regional offices. 

Our objective is to provide project proponents and partner agencies with consistent and efficient 

processes and, where feasible, a single point of contact. 

The Service is either a cooperating or participating agency in the majority of projects covered 

under FAST-41, and all eight of the Service's regions are engaged in the review of covered 

projects. Two of those projects are highlighted below: 

NEXUS Gas Transmission Project and Te..<as Eastern Appalachian Lease Project 

The Service was able to conclude formal consultation under the ESA in less than two months on 

NEXUS Gas Transmission LLC's proposed pipeline in Ohio and Michigan, largely thanks to 

early and robust discussions between the Service and NEXUS. In this case, NEXUS initiated 

discussions with the Service early in the process, actively sought and implemented Service 

recommendations, and drafted detailed and innovative conservation measures. Coordination 

between the Service, NEXUS, and our partner agencies was smooth as a result of early 

consultation, voluntary avoidance of important resources, and cooperative discussion and 

analysis. 

Gateway West Transmission Line Project 

The Gateway West project is a proposed interstate transmission line between Idaho and 

Wyoming, spanning two Service regions and field offices; segments 8 and 9 of the project are 

covered by FAST-41. The Service's Wyoming Fish and Wildlife Office coordinates our role as 

a participating agency working with the project's lead agency, the Bureau of Land Management 

(BLM), to provide reviews under the ESA and other statutes within BLM's mandated timelines. 

Project meetings include many stakeholders, increasing transparency and allowing engaged 

agencies and project proponents to build consensus when considering changes to the proposed 

project to minimize impacts to fish and wildlife resources. The Service continues to work with 

BLM to facilitate the permitting processes for segments 8 and 9 of this project. 

Conclusion 

As discussed above, FAST-41 provides a platform for more etllcient and effective review and 

permitting oflarge and complex infrastructure projects. The Service is focused on building 

efficiencies into our review and permitting processes that will improve and expedite 

consideration of many projects, regardless of whether a project is covered under FAST-4!. 

The Service is committed to improving the environmental review process to facilitate 

environmentally sound infrastructure development through timely, transparent, and predictable 

reviews, while ensuring the conservation of our nation's tish and wildlife resources. We view 

F AST-41 as a constructive framework for arriving at more timely decisions. In addition to 

facilitating increased coordination, FAST-41 increases the accountability of all parties involved 

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129 

by designating priority projects, ensuring commitment to agreed upon time lines, and helping to 

identify and elevate potential issues earlier in the process. FAST-41 is a positive step in helping 

integrate various reviews and facilitating efficient processes across the Federal government. 

Thank you for the opportunity to discuss the Service's work in implementing FAST-41. I would 

be happy to address any questions that you may have. 

3 
Federal Permitting Improvement Steering Council- Office of the Executive Director (FPISC-OED

Capabilities Based on Level of Funding 

Project-Specific 

Support and 

Oversight of FAST41 Covered 

Projects 

Policy Oversight and 

Inter-agency 

Integration 

1 Current Funding Level 

4.25 Million1 15 Milliol] 30 Million' 

./ Capability for project-specific oversight 

and support is very limited- Core staff, 5 

contractors 

./ Dedicated project management staff at 

FPISC HQ to oversee a portfolio of FAST-41 

covered projects. (8 FTE, 12 contractors) 

./ Dedicated HQ and regional pro

management staff to provide o

person technical assistance and 

bottlenecks for specific project

positions split between contrac

staff-aligns with CBO estimate

./ Umited support to lead agencies on 

developing coordinated project plans and 

timelines to synchronize cross-agency 

permitting activities 

./ Dedicated staff to support agencies with 

FAST -41 facilitation -1 FTE at each agency 

responsible for coordinating internal FAST41 responsibilities ./ Dedicated staff to support agen

FAST -41 implementation -1 FT

contractor support at agencies 

coordinate internal FAST-41 re

and address any permitting an

authorization backlogs 

./ Training and support for best practices 

implementation- general support to 

agencies including webinors and nonagency specific publications 

./ Trained mediators to provide limited 

meditation and conflict resolution support 

to agencies. 

./ Targeted support to lead agencies on 

developing coordinated project plans and 

timelines to synchronize cross~agency permitting activities 

X .5 FTE dedicated policy staff- Majority of ./ Dedicated policy staff to focus on: 

time spent on execution of 

Congressionally-mandated reporting 

COmpleting Congressionally-mandated 

reports 

Working with the Council to develop 

policies that maximize permitting 

process improvements 

Interface with White House and senior 

agency leadership 

./ Training and support for best p

implementation- targeted sup

agency headquarters and regio

and key stakeholders 

./ Trained mediators to provide d

meditation and conflict resolut

to agencies and stakeholders 

./ Comprehensive support to lea

on developing coordinated pro

and timelines to synchronize cr

permitting activities 

./ Dedicated policy staff to focus 

Completing Congressional

reports 

Working with the Council t

and implement governme

policies that maximize per

process improvements 

Interface with White Hous

agency leadership 

2 Congressional Budget Office Cost Estimate for S. 280 {July 28, 2015). 
Permitting 

Dashboard 

Fixed Costs 

./ General Maintenance- licensing, ./ General Maintenance -licensing. 

permission management permission management 

J( Dashboard Enhancements Limited. FPISC ./ Dashboard Enhancements- Partial 

will continue to enhance tne aasflboara in 

order ta achieve the minimal statutory 

requirements for permitting timeline data 

and performance schedules 

./ Office Costs {Rent, Supplies, Overhead) 

./ FPISC Executive Director ./ 4 FTE- Serve as core staff and leadership 

team 

·Enhanced reporting, tracking and 

scheduling capabilities 

-Some visual enhancements 

./ Office Costs (Rent, Supplies, Overhead) 

./ FPISC Executive Director ./ 4 FTE ·Serve as leadership team 

./ General Maintenance -licensin

permission management 

./ Dashboard Enhancements- Fu

- State of the Art professional i

that highlights agency success 

in real-time 

-Automated interface with cou

agencies 

./ Office Costs (Rent, Supplies, Ov./ FPISC Executive Director ./ 4 FTE- Serve as leadership team 
132 

Statement for the Record 

by 

The Associated General Contractors of America 

to the 

U.S. Senate 

Committee on Homeland Security & Governmental Affairs' 

Permanent Subcommittee on Investigations 

For a hearing on 

"Cutting Through the Red Tape: Oversight of Federal 

Infrastructure Permitting and the Federal Permitting 

Improvement Steering Council" 

September 7, 2017 

AGC of America THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA 

Quality People. Quality Projects. 

The Associated General Contractors of America (AGC) is the largest and oldest national 

construction trade association in the United States. AGC represents more than 26,000 firms, 

including America's leading general contractors and specialty-contracting firms. Many of the 

nation's service providers and suppliers are associated with AGC through a nationwide network of 

chapters. AGC contractors are engaged in the construction of the nation's commercial buildings, 

shopping centers, factories, warehouses, highways, bridges, tunnels, airports, waterworks 

facilities, waste treatment facilities, levees, locks, dams, water conservation projects, defense 

facilities, multi-family housing projects, and more. 

2300 Wilson Boulevard, Suite 300 • Arlington, VA 22201 • Phone: (703) 548-3118 
133 

Statement for the Record 

The Associated General Contractors of America 

Committee on Homeland Security & Governmental Affairs 

Permanent Subcommittee on Investigations 

United States Senate 

September 7, 2017 

AGC represents more than 26,000 construction contractors, suppliers and service providers across the 

nation, through a nationwide network of 92 chapters in aliSO states, DC, and Puerto Rico. AGC 

contractors are involved in all aspects of nonresidential construction and are building the nation's public 

and private buildings, highways, bridges, water and wastewater facilities, locks, dams, levees and more. 

As such, our members know first-hand how to build infrastructure in a safe, effective and efficient 

manner. Similarly, they know the many challenges to doing just that. The federal environmental review 

and permitting process is such a challenge, repeatedly echoed by AGC members across the country; it's 

a process that is circuitous, costly and time-intensive for many infrastructure projects. 

AGC and its members appreciate the legislative efforts of this Committee in the enactment of Title 41 of 

the Fixing America's Surface Transportation (FAST-41). The creation of the Federal Permitting 

Improvement Council and the Permitting Dashboard are a positive, first step in addressing the excessive 

permitting delays hampering the ability to deliver needed infrastructure projects that help our nation 

remain globally competitive and help mitigate the impacts of natural disasters. However, there remain 

opportunities to build upon FAST-41 as well as reduce duplication in and improve the efficiency of the 

federal environmental review and permitting process. Improving environmental approval processes 

alone while maintaining the integrity of those processes to mitigate environmental impacts could 

generate project cost savings. In addition, such improvements could allow the public to receive and 

benefit from infrastructure projects in a timelier fashion. 

Enclosed with this written statement is AGe's comprehensive proposal entitled "Reforms for Improving 

Federal Environmental Review and Permitting." I will briefly highlight several reforms from that 

proposal. 

I. Why Further Improving the Environmental Review and Permitting Process is Necessary 

Again, AGC must note its appreciation for the work this Committee has untaken in helping enact 

environmental reforms in FAST-41. But, more work can to be done and improvements upon those 

enacted reforms can be made. 

AGC members have pointed to a host of technical and procedural problems that government agencies 

face, in general, during document preparation and interagency reviews: they inevitably lead to 

inconsistencies in the environmental approval process, schedule delays and costs overruns. Such 

uncertainty spurs legal challenges, which can ultimately threaten the viability of the project. 

1 
134 

Based on AGe's first-hand experiences, technical and procedural risks typically stem from: 

Poor interagency communication (leads to missed deadlines and conflicting agency requests and 

responses); 

Inability of the lead agency to make timely decisions, particularly where projects are "political" 

or controversial; 

Lack of qualified government staff to conduct reviews (leads to delays in document 

review/publication and resource-agency comments that are conflicting, redundant, repetitive, 

or inconsistent); 

Confusion during National Environmental Policy Act (NEPA) reviews with joint lead agencies 

(federal and state) because not all agencies have the same directives/thresholds; 

Disagreement over the project's "Purpose and Need;" 

Insufficient "Alternative Analysis;" 

Ineffective stakeholder outreach and engagement; 

Uncertainty over the level of analytical scrutiny to apply in reviewing projects (agencies are risk 

averse and often choose not to pursue streamlined options out of concern that such "shortcuts" will increase litigation); and 

Complex overlay of laws and regulations that apply to infrastructure projects- in addition to 

NEPA- complicates the permitting process (e.g., number of species listed and the breadth of 

critical habitat identified under the Endangered Species Act grows every year). 

Current law provides steps for the lead agency of a project to coordinate and establish schedules with 

participating agencies and other interested stakeholders. But, importantly, as the "deficiencies" column 

on AGe's Current Environmental Streamlining Programs & Deficiencies Chart (see page 4 through 7) 

shows, the lead agency must consult with, and obtain the concurrence of, each participating agency 

before establishing or shortening a "schedule for completion of the environmental review process" AND 

there is no deadline for the government to complete the NEPA review process, from start to finish. In 

addition, where current law does set deadlines far agency actions under NEPA, or for issuing permits 

and permissions, those deadlines are missed because the list of exceptions is as long as the list of 

approvals you need to be in compliance with the 30-plus federal environmental statutes that may apply 

to any given project (see AGe's Federal Environmental Review and Permitting Flowchart, dated June 14, 

2017- on page 8}. 

Current law (per the Moving Ahead for Progress in the 21st Century Act (MAP-21)) does go so far as to 

impose penalties on federal agencies that fail to meet deadlines. Even so, these deadlines are not being 

met and the fines have never been levied. It is not happening because the lead agency can certify, for 

example, the permit application was not complete- or that the participating agency is waiting on 

another entity to make "some" decision before it can move forward with its permit, license or approval; 

and there is apparently a reluctance to elevate disputes. This also is clearly shown on the "deficiencies" 

column on AGe's Current Environmental Streamlining Programs & Deficiencies Chart (see pages 4 

through 7). 

In addition, the "deficiencies" column on AGe's Environmental Streamlining Chart (beginning on page 

4) brings to light the following missed opportunities: 

The government also is not conducting federal and state permitting reviews concurrently, and 

together with NEPA. It is not happening because the law states that agencies do not need to 

2 
135 

carry out their obligations concurrently if it would impact their ability to conduct any analysis or 

meet any obligation; 

Current law requires the lead agency to provide the participating agencies and public the 

opportunity for "involvement" in determining the project's Purpose and Need and Range of 

Alternatives; however, the participating agencies are not required to engage in any meaningful 

way or to ensure these procedural steps produce information to satisfy other federal approvals 

and/or permits required for the project; 

The "Planning and Environmental Linkages" provisions in current law intend to use the 

information, analysis, and products developed during transportation planning to inform the 

environmental review process. But there are 10 conditions spelled out in statute-- and 

participating agencies, the lead agency, and project sponsors must all concur that these 

conditions have been met; and 

The lead agency must develop an "environmental document" sufficient to satisfy federal 

permits, approvals or other federal action required for the project, but only "to the maximum 

extent practicable," per the current law. 

In the face of this statutory and regulatory reality, the delays add up and it's clear that Congress can do 

more. For example, a National Association of Environmental Professionals (NAEP) review of the 194 

Environmental impact Statements (EIS) published in 2015 found that the average time to complete an 

EIS was five years and only 16 percent were prepared in two years or less. Meanwhile, 2015 report by 

Common Good, a non-profit government watchdog, finds that a six-year delay in starting construction 

on public projects costs the nation more than $3.7 trillion in lost employment and economic gain, 

inefficiency, and unnecessary pollution. That is a staggering amount of statutory and regulatory 

inefficiency that needs to be addressed. 
136 

AGC's Current Environmental Streamlining Programs & Deficiencies Chart 

MAP-21 + Title I FAST ACT FAST-41 

23 u.s. Code Chapter 1, §139, 168-69' 42 u.s. c. Chapter ss, su&Ch. IV 

§§4370m -4370m-1Z' 

CATEGORY WHAT'S IN THE LAW DEFICIENCIES WHAT'S IN THE LAW DEFICIENCIES 

Early FAST Act §1304 No increased authority Project sponsor applies Def of "covered prof" 

Coordination/ AFTER NO!, lEAD MUST: of lead agency over to be 11covered project11 excl MAP-21 + WRRDA 

Collaboration . Identify other agencies other partie. agencies projects 

w/in4Sd Federal Permitting 

. Coordination plan w/in Partie. agencies must Improvement Council Limited application90d; inc! NEPA 1

'concur" on proj. MORE THAN $200M 

completion schedule schedule in Early consultation (w/in Proj sponsor must "opt . Dev chklist w/ partie . coordination plan and 60d pro) sponsor in" agencies to help proj modifications to request), coordinated 

sponsor identify all shorten it; can project plans (w/in 60d President must appoint resources lengthen schedule for entry on Dashbd), project ED; each of 13 agencies . Respond cumments "good cause" timetables, public must appoint member from partie. agencies Dashbd tracking .• , to council (Deputy Sec. . Dev envlro doc or higher) ... positions sufficient to satisfy all Obtaining concurrence remain vacant pro) permits/approvals is o challenge, esp for 

controversial projects 

PARTIC AGENCIES MUST: 

. Provide updates in Lead agency con 

/(searchable internet extend deadline for 

website11 ... connect to agencies/public to 

Fed Permitting Dashbd comment NEPA docs 

far "good cause" 

MAP-21 §1305 

Requires concurrence of 

partie. agencies for enviro 

review schedules 

Deadlines MAP-21 §1306 NEPA: No deadlines 180-day window faded Does nat set specific 

. 30d after DEIS -lead agency decision on NEPA review or 

Conflict ~convene schedule PERMITTING: enviro review or permitting schedule 

Resolution check No increased authority authorization- starts 

. P05T-NEPA 180-day of lead over partie. from date agency has all Completion date in 

deadline- for permits1 agencies- agencies info needed recommended performance 

licenses~ & other decide when opplic. schedule for each category 

cannot exceed the avg time 

approval decisions "complete" Disputes re: Tlmeiine to complete an 

1 Provisions apply to all federally aid surface transportation projects for which an environmental impact statement is 

prepared under NEPA and may apply to other projects reviewed under the National Environmental Polley Act 

(NEPA), as determined by the Secretary. 2 Projects may be eligible for coverage under FAST-41 if they: involve construction of infrastructure; require 

authorization or environmental review by a Federal agency; are subject to NEPA; are likely to require a total 

investment of more than $200 million; and do not qualify for an abbreviated environmental review and 

authorization process. 

4 
137 

MAP-21 + Title I FAST ACT FAST~4l 

23 u.s. Code Chapter 1, §139, 168:69' 42 u;s.c. Chapter ss, SubCh,• IV 

§§4370m- 4370m-12 2 

CATEGORY WHAT'S IN THE LAW DEFICIENCIES WHAT'S IN THE LAW DEFICIENCIES 

(clock starts aft applic Go to ExDir fed Perm , environmental review or 

complete) Partie. agencies can lmpr Council - if 30d pass authorization far projects 

. Disputes- Go to head say applir:atian not then OMS+ CEQ within that category. 

Cofculation based on disputing agency, CEQ, complete or can;t facilitate a resolution by analysis of time req'd to 

then President move ahead until day 60, Action taken by complete item (far projects 

another entity makes a Dir. OMB is final and within the relevant category 

Penalty, if Miss Deadline: decision ... conclusive and not of covered projects) during 

180 days after (1) lead Eg; Federal permit, subject to judicial review the preceding two calendar 

agency has issued final license, or approval years. 

decision + (2) complete dependent on: 

permit app filed .. , Funds / 401 CWA Water 

rescinded from office of Qua/Cert; 

head of agency) or head / NHPA -no effect; 

of office to which permit / CZMA 

decision was delegated. determination; 

Amount: per week after / NPDES sw permit; 

180-day deadline passes - / Floodplain permit 

$20k if project requires a by the loco/ 

financial plan (Major /laadplain mgmt 

Project) I $10k for all administrator; 

other projects / FWS/NMFS 

Exceptions: No funds Section 7 consult; 

rescinded if tead agency and 

concurs that delay is not / Tribal concurrence 

the fault of the permitting 

agency. Reluctance to elevate 

dispute or exercise 

MAP-21 §1309 penalties -Partie. 

If EIS underway 2+ yrs, agency self~polices 

USDOT provide addt'l 

assistancet establish 

permitting/approval Concurrence 

schedule .... need 

concurrence - FINISH 

w/in 4 years of start date 

Concurrent MAP·21 §1305 Waived if it "would Requires that So long as doing so 

Reviews Agencies coordinate and impair the ability" of state/federal permitting does not impair o 

carry out activities any agency to meet reviews run concurrently federal agency's ability 

concurrentlyJ instead of obligations for a "covered project" to review the project 

sequentially, and in 

conjunction with the 

NEPArevlew 

FAST Act §1313 

Coordinated/concurrent 

reviews + permitting for 

Title 49 projects, ALSO 

5 
138 

MAP-21 + Title I FAST ACT FAST-41 

23 U.S. Code Chapter 1., §139, 168-69' 42 U.S. C. Chapter SS, SubCh: IV 

§§4370m- 4370m-12' 

CATEGORY WHAT'S IN THE LAW DEFICIENCIES WHAt'S IN THE LAW DEFICIENCIES 

. Purpose and Need 

(P&N) and Range of 

Alternatives must be 

suff to provide 

resource agencies w/ needed info 

. P&N issues must be 

resolved during 

scoping- all other 

"issues'' resolved 

expeditiously 

Alternatives fAST Act §1304 As early as practicable N/A N/A 

Analysis lead agency must provide in the review process 

partie. agencies and Partie agencies not public opportunity for 

uinvo!vement" in defining required 

P&N and determining To the max extent 

Range of Alternatives- practicable ... unless 

used for fed enviro alternatives must be 

reviews/permits req'd for modified to address 

project sign new info/ 

circumstances or to do 

NEPA in timely manner 

Use of MAP-21 §1310; FAST Act "Planning & Adoption, incorporation Must meet complex 

Planning §1305 environmental by reference, and use of process/procedural 

Products in USDOT integrate linkages"- far from state documents standards 

Enviro "planning products" in simple: 10 conditions 

NEPA (e.g., mitigation and need concurrence 

Reviews needs) ... narrows 

concurrence reqm't 

Programmatic MAP-21 §1305 

Use programmatic Approaches approaches for enviro 

reviews, eliminate 

repetition 

MAP-21 §1318; FAST Act 

§1315 

Programmatic Agreement 

(PA) Template 

. PAw/ States- state 

can make NEPA 

categorical exclusion 

(CE) determinations 

FAST Act §1303; 1311 

. Waive case~by~case 

Section 106 + 4(f) 

6 
139 

MAP-21 + Title I FAST ACT FAST-41 

23 U.S. Code Chapter 1, §139, 168·69' 42 u.s. c. Chapter ss, SubCh.IV 

§§4370m- 4370m·l2 1 

CATEGORY WHAT'S IN THE LAW DEFICIENCIES WHAT'S IN THE LAW DEFICIENCIES 

review certain 

bridges/culverts 

. Adopt/incorp. by ref 

another Federal or 

state agency's docs 

MAP-21 §1311 

Allows ~·programmatic 

mitigation plans" to be 

developed in transp 

planning process (by state 

orMPO). 

Accelerate MAP-21 §§1319; FAST Unless FEIS makes N/A N/A 

Review Act§1304 substantial changes to 

Codifies use of errata proposed action or 

Reduce sheets and FEIS/ROO as significant new 

single document circumstances 

Paperwork 

FAST Act §1311 

Expanded provision to 

Title 49 projects 

Single Enviro FAST Act §1304 Only to the maximum N/A N/A 

Document LEAD AGENCY MUST: 

Develop "enviro 

extent practicable 

document" sufficient to 

satisfy fed permits, 

approvals, etc. 

Modernize FAST Act §1317 Report to Congress in N/A N/A 

NEPA Explore electronic and 

other innovative 

one year 

technology options 

Limits on MAP.21 ~1308 Most NEPA challenges . 180-daySOL NEPA challenges 

Lawsuits 150 days after notice in brought well before . NEPA- "get in or get brought well before 

Fed. Reg. announcing deadline out11 deadline 

permit1 license or Prelim lnj- consider 

approval is final1 for Prep+ announcement harmful economy Prep +announcement 

parties to file lawsuits of o "supplemental" impacts (already was af a "supplemental" 

that challenge agency EIS~ when required, done when '

1

balahce E!S$ when required, 

enviro decisions re: restarts the 150-day equities1

') restarts to 150-doy 

surface transportation clack clock 

projects 

7 
140 

AGC's Federal Environmental Review and Permitting Flowchart 

(Full file version submitted separately from this statement and available upon request to AGe's Director 

of Environmental Services Melinda Tomaino at .!Sl_rQainot1J...@£g~Q_r:g.} 
141 

11. Opportunities for Improving Efficiency, While Maintaining Process Integrity 

The ripe, high-level opportunities for improving the efficiency of the environmental review and 

permitting processes rest in the ability of Congress to: (A) merge sequential and duplicative federal 

environmental reviews; (B) mandate the use of previously completed environmental review and study 

information to avoid duplicative reviews; and (C) consider a reasonable and measured approach to 

citizen suit reform designed to prevent misuse of environmental laws. 

A. Sequential and Duplicative Reviews Add Hurdles to Infrastructure Approvals 

The current process of performing sequential and often duplicative environmental reviews and permits 

on the same project- performed by all levels of government following the NEPA approval process- is 

presenting massive legal hurdles to infrastructure approvals (see AGe's Federal Environmental Review 

and Permitting Flowchart, dated June 14, 2017- on page 8). A builder of infrastructure-whether a 

contractor or government agency-must seek approval not from "the government," but from a dozen or 

more different arms of the government. According to bonding companies that finance large public 

works projects, two environmental approvals are critical in rating a project's risk for bond financing. 

Those are the NEPA review (1,579 days, on average, to complete an EIS) and Clean Water Act (CWA) 

Section 404 permit authorization (788 days, on average, to obtain an individual permit). Obtaining these 

approvals prior to bonding greatly reduces risk and achieves a higher bond rating to the benefit of the 

project sponsor. 

Due to the inability of project owners (e.g., state departments of transportation or private developers) 

to obtain Section 404 permits quickly following NEPA approval, 404 permitting risk is often transferred 

to the construction contractor. 

AGC REFORM: 

Several states have merged their NEPA and CWA Section 404 permitting processes; this should be the 

national standard and the U.S. Army Corps of Engineers' (USACE) current regulations already point in 

this direction but do not go far enough. Across the nation there is considerable variation in the usage 

and emphasis of merger processes. In an integrated process, the project sponsor would submit the 404-

permit application to USACE simultaneously with the publication of the draft EIS. USACE would be 

required to issue the 404 permit at the end of the NEPA process based on the information generated by 

NEPA. 

Both the NEPA and Section 404 processes involve the evaluation of alternatives, the assessment of 

impacts to resources, and the balancing of resource impacts and project need. Conducting two 

processes simultaneously (or allowing the former to satisfy the latter) would greatly expedite project 

decision-making and avoid duplication and process inefficiencies. The federal funding agency should 

assume a lead role in shaping the project "purpose and need" and "range of alternatives" during the 

NEPA review. To simplify the review process, and reduce the potential for impasses over minor 

changes, Congress should modify any existing requirements for lead agencies to obtain participating 

agencies' "concurrence" in project schedules or the adoption/use of "planning products." 

9 
142 

More generally, it should be a requirement for all government agencies involved in the issuance of a 

federal permit for any given project to complete concurrent reviews (in conjunction with the NEPA 

review process) within established time periods. From the perspective of the permit applicant, a 

coordinated concurrent review under all major federal and state authorities avoids duplication and 

delays and helps to avoid potentially conflicting permit conditions or limitations (e.g. differing mitigation 

requirements). There must be timelines and deadlines for completing the environmental permitting 

process as well as NEPA review deadlines. 

B. Redoing Permit Documentation and Analyses Wastes Time and Money 

Time and money is wasted on redoing project analyses and reviews and on collecting duplicative 

information from permit applicants. Challenges with environmental documentation and permitting 

processes are root causes for delays on infrastructure projects. The environmental permit approval 

process generally entails sequential reviews by multiple agencies and various requests for projectspecific information. Even though each agency has slightly different forms and different information 

requirements, some of the information {like project descriptions) is duplicated across applications. This 

means that there can be multiple forms requesting the same information in different ways. 

MAP-21 allows the use of errata sheets, rather than rewriting the draft EIS, when minor modifications 

are needed in a final EIS. Also, the lead agency should use a single document for the final EIS and ROD, 

as much as possible, unless there are substantial changes or there are significant new circumstances or 

information changes. By preventing the needless production of multiple additional documents, MAP-21 

significantly reduces the amount of time involved in EISs. MAP-21 also encourages the use of 

"programmatic" mitigation plans and makes it somewhat easier to use previous planning work to meet 

NEPA requirements. Notably, MAP-21 also calls for the lead agency to develop a NEPA ROD that is 

sufficient to satisfy any other federal approvals/permits that the project may require; however, the duty 

to use a "single document" is void if its use would be impracticable, e.g., impair the ability of any federal 

agency to conduct needed analyses or meet any obligations. 

AGC REFORMS: The monitoring, mitigation and other environmental planning work performed during 

the NEPA process, and included the final EIS/ROD, must satisfy federal environmental permitting 

requirements, unless there is a material change in the project. 

Implement an integrated "one-stop" permitting system by creating a single form that collects all 

information needed for major permits. That way, applicants only need to provide information 

once (and to fill out one long form and file it once); 

Also, build an online database of technical information {e.g., on distributions of endangered 

species, critical habitat, or previous permit requirements) so that new information does not 

have to be gathered anew for every project operating in a similar watershed or geographic area; 

Allow environmental reviews to adopt material from previously completed environmental 

reviews from the same geographic area; and 

Require federal agencies to use regional- or national-level programmatic approaches for 

authorizations and environmental reviews, for frequently occurring activities as well as those 

activities with minor impacts to communities and the environment. 

To cite a program worthy of replication: Once a natural gas infrastructure project under the Federal 

Energy Regulatory Commission (FERC) jurisdiction is authorized, project sponsors can request changes as 

"variances." FERC will consider approval of variances upon the project sponsor's written request, if it 

agrees that a varia nee: 

10 
143 

provides equal or better environmental protection; 

is necessary because a portion of this Plan is infeasible or unworkable based on project specific 

conditions; or 

is specifically required in writing by another federal, state, or Native American land 

management agency for the portion of the project on its land or under its jurisdiction.' 

AGC recommends that all federal and state agencies regulating approved publicly-needed infrastructure 

have a clearly defined variance process to follow to efficiently make project changes while maintaining 

environmental protection. 

C. Judicial Review Reforms in Current Law Are Limited and Not Likely To Provide Significant 

Relief 

The citizen suit provisions in 20 environmental statutes are being used to challenge all types of projects, 

land restrictions and permit requirements relating to the projects. These lawsuits can take years to 

resolve and the delay not only impacts the ability to secure the necessary environmental approvals and 

the financing of the project, but in far too many cases- impedes projects that are vital to the 

renovation and improvement of our nation's municipal water supplies, wastewater treatment facilities, 

highway and transit systems, bridges and dams. 

As currently written, the FAST Act's judicial review changes are limited and not likely to provide 

significant relief. FAST-41 reduced the statute of limitations (SOL) for NEPA challenges from six to two 

years; however, most NEPA lawsuits already are filed well within two years. FAST-41 also provides that 

in any action seeking a temporary restraining order or preliminary injunction of a covered project, the 

court shall "consider the potential effects on public health, safety, and the environment, and the 

potential for significant negative effects on jobs resulting from an order or injunction" and shall not 

presume that such harms are reparable. However, most courts already consider an injunction's 

negative impact when balancing the harms and equities. Another FAST-41 provision dictates that NEPA 

challenges can only be brought by those who commented on an EIS and did so with sufficient detail to 

put the lead agency on notice of the claims. With regard to standing, many courts have limited NEPA 

challenges to comments raised within the public review period on the EIS (others allow plaintiffs to file 

suit as long as they can show "injury in fact"). 

MAP-21 reduced the time limit to 150 days after publication of a notice in the Federal Register 

announcing that a permit, license or approval is final, for parties to file lawsuits that challenge agency 

environmental decisions regarding surface transportation projects. However, the preparation and 

announcement of a "supplemental" EIS, when required, restarts to 150-day clock. 

3 Variances are not specifically mentioned in FERC's regulations but rather in its standard best management 

practices for operators found in the "UPLAND EROSION CONTROL, REVEGETATION, AND MAINTENANCE PLAN" and 

"WETLAND AND WATERBODY CONSTRUCTION AND MITIGATION PROCEDURES." Note that these plans are 

referenced in the regulations at 18 C.F.R. 380.12(i)(S) and 380.12(d)(2)- but not the details of the plans. Both 

plans were updated in 2013, but the variance process has been in place since at least 2003. See Sections lA, 

Applicability in these online documents: bllils://www.ferc.go'o'fJDQ.IJ5Jd\:.Sifull/cnviro/plan.pdf; 

lJLU22Ji~'Y::!:!~:.it~r~~Dsd.u_:i!Jk:-'?i&isis·:.o.YimL2TOCt~dJJ..I212Qf. 

11 
144 

AGC REFORMS: Citizen suit reforms are necessary to prevent their abuse. 

Further shorten and standardize the SOL for challenges to final NEPA RODs or claims seeking 

judicial review of an environmental permit, license or approval issued by a Federal agency for an 

infrastructure project; 

Require interested parties to get involved early in a project's review process to maintain 

standing to sue later; 

Require bonds be posted by plaintiffs seeking to block activities to reduce abuse and delay 

tactics that harm private parties and taxpayers; and 

Require that the enforcement of federal environmental rules on a construction site be enforced 

only by trained staff of government agencies -oro Limit citizen suit penalties to violations of objective, numeric limitations rather than 

subjective, narrative standards; 

o Extend "notice period" beyond the current 60 days (giving regulatory agencies more 

time to review notice of intent letters and initiate formal actions); 

o Clarify definition of "diligent prosecution" of alleged violations, thereby allowing 

federal/state authorities to exercise their primacy in enforcement and preventing 

unnecessary citizen suit intervention. 

Ill. Conclusion 

As noted, AGC appreciates the previous efforts this Committee has taken to reduce the duration of the 

federal environmental review and permitting processes. But, again, more reforms must be enacted to 

address the significant bottlenecks and redundancies in the environmental process. 

We believe that the reforms suggested here and additionally enclosed below would both shorten the 

process while maintaining the integrity of the overall process that helps ensure infrastructure project 

impacts on the environment are mitigated. 

Thank you again for the opportunity to submit this statement and considering AGC's views. 

12 
145 

ACC of America it({@D !! !L '\'-.~()( 1:\lUJ C.l.'JLRt\1 (ONJ"!./.AC!OI~S OJ" AMI RICA lj~~·::'._,_~y 

Building on Experience YEARS 

Reforms 

for Improving Federal Environmental 

Review and Permitting 

PROBLEM 

The Federal Government is a steward of the public trust and the timeliness of its decisions 

can have major implications for the environment and the economy. Delays in environmental 

review and permitting decisions, as well as lengthy procurement processes, often derail the 

efficient delivery of needed infrastructure projects by many years. These processes are 

bureaucratic, lengthy, complex and duplicative. They involve multiple interrelated approvals 

within a labyrinth of numerous agencies. Throughout these processes, too often, litigation 

abounds. Delays deny the public the substantial benefits that come from a construction 

project: improving our economy, our competitiveness, and our quality of life. 

GOAL 

AGC hopes this document will help frame the problems that are playing out on public 

projects and demonstrate the need for reform. The sections that follow identify ways to 

lessen the time and costs associated with environmental review and permitting- with a 

focus on integrating the processes to avoid sequential and duplicative reviews, minimize 

redoing permit documentation and analyses, foster innovation, reduce litigation, and 

mitigate the unreasonable contractual risks that are unnecessarily driving up costs for 

infrastructure projects. AGC offers specific reforms that seek to offset lengthy National 

Environmental Policy Act review schedules and avoid the Clean Water Act Section 404 

permitting lag that follows. 

Prepared by: 

The Associated General Contractors of America 

2300 Wilson Boulevard, Suite 300 

Arlington, Virginia 22201 

Main Phone Number: (703} 548-3118 

Date: Discussion Draft v2- July 24, 2017 
146 

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Table of Contents 

I. Executive Summary __________________________ 3 

II. In traduction to Federal Review and Permitting ---------------- 4 

A. The Use of NEPA 4 

B. The Interplay between NEPA and other Federal Requirements 5 

C. Federal Review and Permitting in Action 7 

D. Federal Review and Permitting Costs 7 

/11. General Recommendations to Improve Federal Review and Permitting Efficiency __ 8 

A. Streamlining Reforms in Current Law Have Limited Applicability; Fail to Mandate Schedules _ 8 

B. Sequential and Duplicative Reviews Add Hurdles to Infrastructure Approvals 10 

C. Redoing Permit Documentation and Analyses Wastes Time and Money 11 

D. Environmental Justice and "Not in My Backyard" (NIMBY) Principles Are Being Used 

to Stop Infrastructure Growth 12 

E. Citizen Suits Are the BOO-Pound Gorilla 12 

F. Permitting Risk Remains Key Barrier to Infrastructure Investment __________ 14 

IV. Recommended Reforms Specific to the NEPA Process 15 

A. NEPA Process Issues Compromise Efficient Delivery of Infrastructure Projects 15 

1. Initiating Design-Build or P3 Procurement Prior to Conclusion of NEPA Process Drives Up Cost __ 15 

2. Even Minor Construction Changes Cause Major Delay When It Re-Opens NEPA; Stifling Private 

Sector Innovation 16 

B. Inefficient Bureaucratic Processes Force Reevaluation of Previously Approved NEPA 

Documents, Decisions ---------------------------- 17 

C. Disagreements Loom Over Role Coordinating Agencies Play in NEPA Process 17 

D. US EPA Plays Commanding Role in NEPA Review Process 18 

E. Agencies Struggle with Climate-Change Impacts Analyses 18 

V. Federal Permitting Example: The Clean Water Act Section 404 Permit Process ___ 19 

A. At-A-Glance Look at the CWA Section 404 Permit Process 20 

B. 'Chokepoint' Details in CWA Section 404 Individual Permit Process---------- 21 

1. Jurisdictional Determination 21 

2. Application Adds/Corrections 21 

3. Public/Agency Input Process 21 

4. Related Reviews/Permits 22 

5. US EPA Veto 404(c) or 23 

6. litigaf1on 23 

7. Permit Conditions.. 23 

C. Recommended Reforms Specific to the 404 Program --------------- 23 

1. USEPA's Authority to Veto a Duly Issued Permit Casts Uncertainty on Development 23 

2. Permitting Authorities Are Thwarting Advanced Mitigation, Mitigation Banking, and Future 

Mitigation Investments 24 

3. Delay on the RHA Section 408 Side Puts Off the CWA Section 404 Review Process and Further 

Delays Construction -----------------------------25 

VI. AGC Staff Contacts 26 

Appendix 1: Expedited Environmental Review of Infrastructure Projects- FAST-41 Highlights 

32 

DISCUSSION DRAFT V2-JULY 24,2017 
147 

I. Executive Summary 

Most large infrastructure projects must receive environmental reviews and approvals that involve many 

federal agencies and multiple levels of government. What is more, these projects generally do not 

qualify for efficient general permitting procedures and must obtain extremely costly and timeconsuming individual permits, on a project-by-project basis. AGC, in this document, is focused on 

reforming the National Environmental Policy Act (NEPA) and the federal environmental permitting 

process to eliminate delays, unnecessary duplication, and frivolous litigation, and give worthy projects a 

timely green light. 

Specifically, Congress should strengthen and expand the time-limited schedules and other meaningful 

"streamlining" reforms in current law and impose action-forcing mechanisms as well as incentive 

programs to ensure agency-wide compliance. To avoid sequential and duplicative reviews that slow 

down many large infrastructure projects, Congress should require the issuance of Clean Water Act 

Section 404 permits in conjunction with the NEPA Record of Decision. To this end, it is critical that 

Congress require agencies to allow the monitoring, mitigation and other environmental planning work 

performed during the NEPA process, and included the final Environmental 1m pact Statement, to satisfy 

federal environmental permitting requirements. 

AGC also points out why undisclosed environmental risk- as for managing and remediating unforeseen 

hazardous material- can unnecessarily drive up construction costs, particularly on public works 

projects, (due to added cost contingencies) and limit the universe of qualified, responsible construction 

firms (due to contractors dropping out of the procurement). Congress should require the government 

to bear such unquantifiable risk on public works projects and/or provide contractual relief through cost 

sharing mechanisms. 

Importantly, the threat of endless litigation (with regard to environmental justice, climate impacts and 

other issues) is forcing agencies to try to make their NEPA analyses litigation-proof so they survive 

judicial challenges under NEPA's well worn "hard look" standard. AGC herein makes the case for why 

Congress should work to remove the incentives for frivolous and obstructive litigation that are delaying, 

and sometimes defeating, proposed projects. 

AGC also offers specific reforms to the NEPA process that would help to expedite project construction at 

a reduced price, while supporting the innovation needed to our nation's infrastructure, include 

prohibiting the initiation of procurement prior to the NEPA approval and exempting de minimis changes 

formal NEPA re-evaluation. Specific to the 404-permitting process, reforms are needed to encourage 

advance mitigation planning and investment. 

DISCUSSION DRAFT V2- JULY 24, 2017 3 
148 

II. Introduction to Federal Review and Permitting 

A. The Use of NEPA 

NEPA is a procedural "planning" statute with two primary aims. First, it obligates federal agencies to 

consider every significant aspect of the environmental impact of an action along with alternatives before 

proceeding with it. Second, it ensures that the agency responsible for the action will inform the public of 

what the action is, and that it has considered environmental concerns in its decision-making process. In 

this capacity, NEPA has become one of the primary mechanisms through which the public can 

participate in the federal decision-making process. 

There are three triggers for NEPA's procedural requirements: 

One or more project components will occur on federal lands, such as national forests or Bureau of 

Land Management lands (e.g., building powerlines, drilling for oil, logging, installing renewable 

energy projects) 1 

The project or its components will be funded in part or whole by federal funds. 

The project will require a federal permit or license. 

Federal actions to which NEPA applies involve the participation of a "lead agency" and "cooperating 

agencies." The lead agency is the federal agency that takes responsibility for preparing the NEPA 

documentation.' A cooperating agency is any federal agency, other than a lead agency, that has 

jurisdiction by law or special expertise regarding any environmental impact involved in a proposal. A 

tribal, state, or local agency may also be a cooperating agency. 3 As explained below, there are a host of 

environmental statutes that may apply to a given federal action and, as such, numerous federal agencies 

may be required to participate in the NEPA process. 

NEPA covers the full range of potential environmental impacts, including but not limited to water quality 

impacts, wetlands impacts, air quality impacts, endangered species impacts, and historic resources 

impacts. NEPA establishes procedural and planning practices for federal agencies but it does not replace 

(or conflict with) other substantive environmental laws (e.g., Clean Air Act, Clean Water Act, Endangered 

Species Act) and the additional permitting and process procedures required therein.' See Section II.B 

below. 

If the environmental consequences of a proposed federal action may be significant, the federal agency 

prepares an Environmental impact Statement (EIS). An EIS is a detailed evaluation of the proposed 

action and alternatives. As soon as possible after determining that an EIS is needed, the agency is 

required to determine the scope of the project (including any environmental laws, regulations, or 

executive orders, in addition to NEPA, that will apply to the project). Once the agency determines the 

scope of the action, EIS preparation can begin. The action's "purpose and need statement" is the 

foundation on which subsequent sections of the EIS are built-' 

EISs and supporting technical studies often run a thousand pages or more. The public, other 

federal/state cooperating agencies, and outside parties provide input into the preparation of an EIS and 

then comment on the draft EIS when it is completed.' After a final EIS is prepared, a federal agency will 

prepare a public Record of its Decision (ROD) that addresses how the agency incorporated the findings 

of the EIS, including consideration of alternatives, into the decision-making process. 7 

DISCUSSION DRAFTV2-JULY 24,2017 4 
149 

Fed/State Cooperatrng 

Agencies (USEPA, USFWS, 

USACE, statellocat 

etc,) 

B. The Interplay between NEPA and other Federal Requirements 

NEPA forms the framework to coordinate compliance with other environment-related statutes and 

regulations, many of which impose permit requirements, On the positive, the NEPA process serves to 

provide decision-makers with a more comprehensive view of the major environmental issues and 

potential conflicts among the environmental components of proposed projects. However, NEPA does 

not give the lead agency (or for that matter, the Council on Environmental Quality (CEQ)) regulatory 

authority and oversight of the agencies charged with implementing the regulations and permitting 

programs that are required to adequately ensure the federal activity is conducted to avoid and minimize 

potential impacts. In current practice, project proponents are generally proceeding with piecemeal 

permit applications after NEPA to advance the project to construction. 

Construction projects, such as bridge and highway construction, pipelines, water resource projects, 

renewable or conventional energy production may require compliance with literally dozens of federal, 

state, tribal, and local laws. 

Federal environmental legal requirements potentially applicable to federal actions include; but may not 

be limited to: 

Archaeological and Historical Preservation Act 

Clean Air Act 

Clean Water Act (CWA) 

Coastal Zone Management Act 

Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) 

Emergency Planning and Community Right to Know Act (EPCRA) 

Endangered Species Act (ESA) 

Executive Order 12898 (Environmental Justice) 

Farmland Protection Policy Act 

DISCUSSION DRAFT V2- JULY 24, 2017 5 
150 

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Fish and Wildlife Coordination Act 

Historic Sites, Buildings and Antiquities Act 

Marine Mammal Protection Act 

Migratory Bird Treaty Act 

National Historic Preservation Act 

Pollution Prevention Act 

Resource Conservation and Recovery Act (RCRA) 

Rivers and Harbors Act 

Safe Drinking Water Act 

Section 4(f) of USDOT Act (49 USC 303) 

Title VI of the Civil Rights Act 

Wild and Scenic Rivers Act 

Wilderness Act 

These federal statutes are administered by a variety of different federal agencies that could all 

potentially become "cooperating agencies" in any given NEPA evaluation; including but not limited to: 

Advisory Council on Historic Preservation 

Army Corps of Engineers (USACE) 

Bureau of Land Management 

Environmental Protection Agency (USEPA) 

Federal Energy Regulatory Commission (FERC or Commission) 

Fish and Wildlife Service (USFWS) 

Forest Service 

National Marine Fisheries Service (NMFS) 

National Park Service 

Natural Resources Conservation Service of U.S. Department of Agriculture 

Tribal Consultation 

Indeed, the NEPA process requires the lead agency to coordinate extensive reviews, documentation and 

analysis with other federal agencies including the ones listed above, as well as various state regulatory 

and review agencies. One of the challenges for project sponsors is to align all the different agency 

approvals that are needed for a project. 

In addition to the NEPA process, the project sponsor/operator will need to complete separate 

environmental federal permit processes or analyses, as the final version of the project may warrant. 

CEQ's NEPA regulations require a draft EIS to "list all Federal permits, licenses, and other entitlements 

which must be obtained in implementing the proposal."' 

The CEQ has formally sought to streamline the NEPA process, and in 2011 it issued a Memorandum for 

Heads of Federal Departments and Agencies that touted the benefits of "integrating environmental 

reviews, coordinating multi-agency or multi-governmental reviews and approvals ... " 9 CEQ regulations 

encourage agencies to integrate these multiple reviews into a single, comprehensive EIS that is prepared 

concurrently and integrated with the requirements of other federal environmentallawsw Several 

agencies have issued guidance" on how to accomplish such streamlining with regard to substantive (and 

not merely procedural) environmental laws. But multi-year approval processes remain the norm and 

delay perpetuates the bottlenecks and inefficiencies that impede competitiveness and cause pollution. 

DISCUSSION DRAFTV2-JULY 24,2017 6 
151 

C. Federal Review and Permitting in Action 

There are a multitude of statutes, implementing regulations, agency policies, and court decisions that 

affect what permits are required on construction projects, what agencies look for during a permitting 

process, and what activities or discharges they can authorize. Duplicative environmental reviews and 

permits are often required on the same project by federal, state, and local governments. A builder of 

infrastructure must seek approval not from "the government," but from a dozen or more different arms 

of the government. 

The process of issuing a federal environmental permit almost always involves a complex web of related 

permissions, approvals and certifications that are all interdependent. For example, if the USACE 

determines that a project requires federal authorization under a CWA Section 404 permit before it can 

proceed, the project sponsor/operator can expect a lengthy and costly process during which a host of 

separate agencies will enter the fray: the USFWS (and/or the NMFS) will likely be engaged through 

consultation on endangered species or essential fish habitats; the state environmental agency will be 

involved pursuant to the Section 401 water quality certification process; other state historic 

preservation offices may be involved depending on their role in their respective state and the nature of 

the project; the pertinent tribal government is involved if any tribal leads or interests are impacted by 

the project. See Section V-At-A-Glance Look at the CWA 404 Individual Permit Process and 

'Chokepoints.' 

Looking just at the federal environmental permitting scheme, in addition to the potential need for 

Section 404 permit coverage, a manufacturing or stationary-source plant would likely also need the 

following permits from the USEPA or from its delegated state authority: 

National Pollution Discharge Elimination System (NPDES) permit under CWA Section 402; 

Title V Clean Air Act operating permit for a "major source" of pollutants (certifying compliance with 

the applicable requirements of their permits at least annually); 

New Source Review and Prevention of Significant Deterioration Clean Air Act permit prior to 

construction to ensure that the anticipated "release of pollutants [does not] exceed federal 

standards for the region;" 

Additional CWA and CAA permits may apply as well as Safe Drinking Water Act, RCRA and EPCRA 

requirements- depending on the types of materials the manufacturing facility uses and the waste 

streams it generates. 

D. Federal Review and Permitting Costs 

The cost to prepare an EIS is often borne by project sponsors. For public projects, this means the 

government and, ultimately, taxpayers. 

Per a National Association of Environmental Professionals (NAEP) review of the 194 EISs published in 

2015, the average time to complete an EIS was five years and only 16 percent were prepared in two 

years or less.U 

A U.S. Government Accountability Office (GAO) report stated that the average completion time for 

an EIS in 2012 was 4.6 yearsB 

DISCUSSION DRAFTV2-JULY 24,2017 
152 

Between 2003 and 2012, the U.S. Department of Energy paid consultants an average fee of $6.6 

million, and as much as $8S million, to prepare E1Ss. 14 

The opportunity cost also can be significant: 

The 2015 report by Common Good, a non-profit government watchdog, finds that a six-year delay in 

starting construction on public projects costs the nation more than $3.7 trillion in lost employment 

and economic gain, inefficiency, and unnecessary pollution15 

Delay also dramatically increases the cost of construction. 

That projected total is more than double the $1.7 trillion needed through the end of this decade to 

modernize and upgrade the crumbling U.S. infrastructure, according to projections of the American 

Society of Civil Engineers. 

The procurement process for large projects is moving to design-build. These procurements expedite 

construction; however, these efficiencies may be offset by lengthy procurement processes. 

A $1.3 billion procurement of a 60-mile segment of high speed rail took 15 months from RFQ 

(request for qualifications) to award. 

A $860 million procurement of a 30-mile tollway took 21 months from RFQ to award. 

An RFQ for a $1.3 billion procurement for a reconstruction of a highway in a major city has spanned 

over two years and has yet to award. 

Ill. General Recommendations to Improve Federal Review and 

Permitting Efficiency 

A. Streamlining Reforms in Current Law Have Limited Applicability; Fail 

to Mandate Schedules 

Currently the environmental streamlining reforms in current law have limited application and, in some 

cases, miss the mark. MAP-21 (The Moving Ahead for Progress in the 21" Century Act), 16 the Water 

Resources Reform and Development Act (WRRDA) of 2014,17 and the FAST Act (Fixing America's Surface 

Transportation Act) included a great deal of new authority designed to streamline project review and 

approval. See Appendix 1: Expedited Environmental Review of Infrastructure Projects- FAST-41 

Highlights. See also the Energy Policy Act of 2005 (EPAct 2005),18 a law intended to streamline and 

expedite federal authorizations for interstate natural gas pipeline projects and electric transmission 

infrastructure projects. Still, more reforms are needed, and on a more comprehensive basis, to 

improve our delivery of important infrastructure projects across the nation. 

HfFORrvt Rather than creating brand new processes, Congress should expand the meaningful reform.s 

included in Title 41"1 of the FAST Act (FAST-41) (coordinated and time-limited environmental review and 

permitting scheclu!e and enhanced procedural transpdrency) more broadly so that they cover more 

proJects (i.e., projects with total investment of LESS than $200 million). FAST-41's definition of "covered 

proJect" leaves room for confusion and does not mc!ude most fed era! transportation projects or federal 

water rt"sourcc deveiopment projects-· see Appendix L \/"Jhat is more, the language appears to give 

developers the opUon not to participate ln the new process: Infrastructure projects may be become 

"covered projects." under FAST-41 only after the project sponsor submits "an initiation notice for 

incluoion" under the Act''' To expedite the delivery of projects, Congress should ensure that the 

DISCUSSION DRAFTV2-JULY 24,2017 
153 

";treamlining" process applies to all NEPA reviews for the "construction of, and infrastructure for" 

federally funded infrastructure projects. 

A significant deficiency with the FAST-411anguage is that the "deadlines" are flexible and non-binding. 

FAST-41 does not set specific review/permitting schedules." FAST-41 sets a 180-day window for a 

federal agency decision on an environmental review or authorization- starting from the date the 

relevant agency receives all information needed to complete the review." But the law gives agencies 

discretion in determining when they have sufficient information to make a decision on a project. 

Therefore, time limits are likely to fluctuate if an agency determines more information is needed or 

demonstrates a reason for missing the completion date (theoretically an agency could continue to ask 

for more information and/or propose alternative completion dates). See Appendix 1: Expedited 

Environmental Review of Infrastructure Projects- FAST-41 Highlights. 

MAP-21 addressed environmental delays in the delivery of federal-aid transportation projects. 

Specifically, the law requires federal agencies to act on a decision to issue any permit, license, or 

approval within 180 days of either the lead agency's final NEPA decision or the receipt of the application 

by the participating agency, whichever is later. Failure to meet the deadline established in MAP-21 will 

result in financial penalties to the offending federal agency 23 For complex projects, MAP-21 requires 

the U.S. Department of Transportation to provide additional technical assistance to establish a schedule 

for completing permits, approvals, etc., within four years of formal announcement of intent to prepare 

an EIS, as defined in CEQ NEPA regulations at 40 C.F.R. § 1S08.22." 

REFOH~ Congress should strengthen thf! time limited schedules in cAST-41 to make them truly 

mandatory. Any objections that are not raised or resolved within il definite timeframe should be waived 

and the procedure deemed complete and you would move on to the next step. There should also be 

a hard deadline tor the completion of NEPA review. (For example, the RAPID Act" proposed deadlines 

of 18 months for an Environmental Assessment (EA) and 36 months for an EIS.) An action-forcing 

mPchanism should deem a project approved within a definite tirneframe. Also, consider a broader 

dpp!icatlon of MAP-21's provision that imposes financial penalties on agencies that fail to render 

permitting decisions within the deadline, 

With tht' passage of EPAct 200S, Congress amended the Federal Power Act of 1935, the Natural Gas Act 

of 1938, and the Public Utility Regulatory Policies Act of 1978 and granted the Federal Energy Regulatory 

Commission (FERC or Commission) with significant responsibilities and authority over energy projects. 

EPAct Included three principal policy goals for the Commission: 

1 reaffirmed a commitment to competition in wholesale power markets as national pollcy; 

2. strenp,thened the Corn mission's regulatory tools, recognizing that effective regulation is 

nr.cessary to protect the consumer from exploitation and ensure fair competition; and 

3, provided tor deve!oprnont of stronger energy infrastructure. 

For electric transmission infrastructure, th0 Commission signed a Memorandum of Understanding with 

the U.S. Department of Energy and other federal resource agencies with authority to issue federal 

authori7ations far electric tmnsmission farillties to establish a coordinated federal review and 

permitting process. As part of EPAct, Congress also gave three or rnore contiguous states the 

opportunity to enter an interstate compact to establish regional transmission siting agencies to: 

L facilitate siting of future electric energy transmission facilities within those states; and 

2. carry out the electric energy transmission siting responsibilities of those states. 

DISCUSSION DRAFT V2- JULY 24, 2017 9 
154 

The regional transmission siting agencies "shall have the authority to review, certify, and permit siting of 

transmission facilities, including facilities in national interest electric transmission corridors (other than 

facilities on property owned by the United States)." The Commission shall have "no authority to issue a 

permit for the construction or modification of an electric transmission facility within a State that is a 

party to a compact, unless the members of the compact are in disagreement" and the Secretary makes 

the requisite finding. 26 

REFORM: Congress should review the initial success of EPAct with respect to regional transmission siting 

agencies and the effectiveness for timely development of electric transmission infrastructure projects. 

For natural gas infrastructure projects, FERC became responsible for the coordination, environmental 

review, and the processing of all federal authorizations relating to proposals for interstate projects 

under its jurisdiction (pipelines, storage fields, compressor stations, liquefied natural gas facilities, 

etc.)." Subsequently in late 2006, FERC issued a Final Rule (Order 687) 28 and regulations" establishing 

the process by which it would exercise its responsibilities under Section 313 of EPAct, including the 

requirement to set expeditious schedules for all federal and state agencies acting under federal 

delegated authority, to reach a final decision on requests for federal authorizations necessary for 

natural gas infrastructure projects. In its final rule, the Commission established a 90-day deadline for 

other federal decisions upon the issuance of FERC's final EA or final EIS, unless a specific schedule is 

otherwise formally noticed by FERC.30 However, if a federal or state agency does not comply with the 

FERC schedule for federal authorizations, EPAct 2005 only provides an enforcement option for the 

applicant, not FER C. Section 313 allows an applicant to file a petition with the United States Court of 

Appeals for the District of Columbia Circuit, which is given original and exclusive jurisdiction over any 

civil action for review of an alleged failure of an agency to issue, condition, or deny any permit required 

under federal law." But this provision has rarely been used, allowing agencies to miss the required 

federal authorization deadline without consequence. 

REFORM: Congress should review the initial success of EPAct in regard to interstate natural gas 

infrastructure projects and the more recent (last 3 years) project schedule delays and declining applicant 

certainly in regard to NEPA and permitting timelines. Further, Congress should clarify with the 

Commission why the FERC 90-day deadline for other federal decisions upon the issuance of a final EA or 

final EIS is not consistently upheld. 

B. Sequential and Duplicative Reviews Add Hurdles to Infrastructure 

Approvals 

The current process of performing sequential and often duplicative environmental reviews and 

permits on the same project- performed by all levels of government following the NEPA approval 

process- is presenting massive legal hurdles to infrastructure approvals. A builder of infrastructurewhether a contractor or government agency-must seek approval not from "the government," but from 

a dozen or more different arms of the government. According to bonding companies that finance large 

public works projects, two environmental approvals are critical in rating a project's risk for bond 

financing. Those are the NEPA review (1,679 days, on average, to complete an EIS) and CWA Section 

404 permit authorization (788 days, on average, to obtain an individual permit). Obtaining these 

approvals prior to bonding greatly reduces risk and achieves a higher bond rating to the benefit of the 

project sponsor. 

DISCUSSION DRAFT V2- JULY 24, 2017 10 
155 

FAST-41 requires that state and federal permitting reviews run concurrently for a "covered project" so 

long as doing so does not impair a federal agency's ability to review the project32 The law does not 

specify the permits and approvals required to be included in the schedule. Again, as stated above, there 

is no penalty or regulatory consequence for missed deadlines. MAP-21 directs cooperating agencies to 

coordinate and carry out activities concurrently, instead of sequentially, and in conjunction with the 

NEPA review, and expanded the use of categorical exclusions." (Notably, the "concurrent review" 

requirement under MAP-21 is waived if it "would impair the ability" of any agency to conduct any 

analysis or meet any obligation.) WRRDA similarly requires agency coordination and concurrent action 

on environmental reviews to accelerate project delivery." 

REFORM: For federal transportation projects, several states have merged their NEPA and CWA Section 

404 permitting processes; this should be the national standard and USACE's current regulations already 

point in this direction but do not go far enough." (Across the nation there is considerable variation in 

the usage and emphasis of merger processes.) ln an integrated process, the project sponsor would 

submit the 404-permit application to USACE simultaneously with the publication of the draft EIS. USACE 

would be required to issue the 404 permit at the end of the NEPA process based on the information 

generated by NEPA. 

Both the NfPA and Section 404 processes involve the evaluation of alternatives, the assessment of 

imp0ct5 to resources, and the balancing of resource itnpacts and project need. Conducting two 

processes simultaneously (or allowing the former to satisfy the latter) would greatly expedite project 

d!::'cisicHHnJking and avoid duplication and process !nefficiencies. 16 NOTE: The federal funding agency 

'Jhould assume a lead ro!e in shaping the project "purpose and need" and "'range of alternatives" during 

the NEPA review. To simplify the review process, and reduce the potential for impasses over minor 

changes, Congress should modify any existing requirements for lead agencies to obtain participating 

agencies' "concurrence" in project schedules or the adoption/use of "planning products." 3

; 

More generally, it should be a requirement for all government agencies involved in the issuance of a 

federally required permit for any given project to complete concurrent reviews (in conjunction with the 

Nf: PA rev:ew proo~ss) within t.'Statlllshed time periods. From the perspective of the permit applicant, a 

coordinated concurrent review under a !I major federal and state authorities avolds duplication and 

delays and helps to avoid potentially conflicting permit conditions or limitations (e.g. differing mitigation 

rc:quirernents}. I here rnu.st be tlrnelines and deadlines for completing the environmental permitting 

process a':> well a'> NEPA review deadlines (see <Jbove). 

C. Redoing Permit Documentation and Analyses Wastes Time and 

Money 

Time and money is wasted on redoing project analyses and reviews and on collecting duplicative 

information from permit applicants. Challenges with environmental documentation and permitting 

processes are root causes for delays on infrastructure projects. The environmental permit approval 

process generally entails sequential reviews by multiple agencies and various requests for projectspecific information. Even though each agency has slightly different forms and different information 

requirements, some of the information (like project descriptions) is duplicated across applications. This 

means that there can be multiple forms requesting the same information in different ways. 

DISCUSSION DRAFT V2- JULY 24, 2017 11 
156 

On the positive side, MAP-21 allows the use of errata sheets, rather than rewriting the draft EIS, when 

minor modifications are needed in a final EIS. Also, under current law the lead agency should use a 

single document for the final EIS and ROD, as much as possible, unless there are substantial changes or 

there are significant new circumstances or information changes." By preventing the needless 

production of multiple additional documents, MAP-21 significantly reduces the amount oftime involved 

in EISs. MAP-21 also encourages the use of "programmatic" mitigation plans 39 and makes it somewhat 

easier to use previous planning work to meet NEPA requirements." Notably, the FAST Act also calls for 

the lead agency to develop a NEPA ROD that is sufficient to satisfy any other federal approvals/permits 

that the project may require; however, the duty to use a "single document" is void if its use would be 

impracticable (e.g., impair the ability of any federal agency to conduct needed analyses or meet any 

obligations.)" 

REFORM: The monitoring, mitigation and other environmental planning work performed during the 

NEPA process, and included the final EIS/ROD, must satisfy federal environmental permitting 

requirements, unless there is a material change in the project. 41 Implement an integrated "one-stop" 

permitting system by creating a single form that collects all information needed for major permits. That 

way, applicants only need to provide information once (and to fill out one long form and file it once). 

Also, build an online database of technical information (e.g., on distributions of endangered species, 

critical habitat, or previous permit requirements) so that new information does not have to be gathered 

anew for every project operating in 03 similar watershed or geographic area. Allow environmental 

review~ to adopt materia! frorn previously completed environmental reviews from the same geographic 

area. Require federal agencies to use regional~ or national-level programmatic approaches for 

authoriz:ations und environmental reviews, for frequently occurring activities as well as those activities 

with minor impacts to communities and the environment. 43 

D. Environmental Justice and "Not in My Backyard" (NIMBY) Principles 

Are Being Used to Stop Infrastructure Growth 

As our communities get more crowded and congested, it has become more difficult to site major 

facilities for transportation, waste management, water supply, sewage treatment, mass transit, 

manufacturing, energy, etc. The transition to a more sustainable, renewable resource based economy 

requires new water infrastructure, coastal resiliency projects, mass transit and other types of 

development. 

!l.ILQRM: The public at large (government officials, community groups, landowners, 

builders/developers) is provided meaningful opportunities to participate in the environmentul r-eview 

process. !n uddltion, federal agencies must consider environmental justice in their activities under N EPA 

nnd in !ssuine permits. 44 Environmental justice should not be a legal basis for challenging RODs or 

approved environmental perrnits 

E. Citizen Suits Are the 800-Pound Gorilla 

Citizens are famously litigious in attempting to impede government approvals of development or to 

control land use. All federal environmental statutes, except the Federal Insecticide, Fungicide, and 

DISCUSSION DRAFTV2-JULY 24,2017 12 
157 

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Rodenticide Act, allow rtany citizen" to bring a 11 civil action on his own behalf' against "any person" 

(including the government) who is alleged "to be in violation" of a standard or order issued under the 

statute. While NEPA does not have a citizen suit provision per se, an agency's failure to follow NEPA's 

required procedures can be challenged under the Administrative Procedures Act. 

Even on projects where an EIS is not required, officials spend years "working through every detail" for 

fear of being sued sometime in the future!' There is a high rate of turnover among the government 

career staff carrying out the NEPA procedures, and it is not uncommon for the new person on the team 

to "waste" $50,000 in printing fees and many months redoing documents just to make minor edits (e.g., 

date changes). Still, private plaintiffs who seek to delay or halt a controversial construction project will 

file a lawsuit against the government alleging noncompliance with the NEPA procedures or against the 

project owner or operator for an alleged failure to comply with (or secure coverage under) and 

environmental permit. Many lawsuits begin with an injunction requiring immediate stoppage of work 

and may take considerable time, effort and cost in attorney fees and court costs to resolve. 

EXAMPLE: When Maryland, Virginia and the District of Columbia agreed that the Woodrow 

Wilson Bridge (1-95 between Oxon Hill, Maryland and Alexandria, Virginia) needed to be 

replaced and widened, a long and detailed EIS process had to be followed, even though the 

proposed new (and wider) bridge was replacing an old and inadequate crossing. Once the 

EIS was complete, the Sierra Club filed suit in federal court for the District of Columbia to 

remand the document for more work, and Sierra won at the district court (trial court) level, 

but the trial court's remand was reversed by the U.S. Court of Appeals for the District of 

Columbia. All of this litigation took several years to complete. 

As currently written, the FAST Act's judicial review changes are limited and not likely to provide 

significant relief. FAST-41 reduced the statute of limitations for NEPA challenges from six to two years to 

provide more certainty for applicants; however, most NEPA lawsuits already are filed well within two 

years, because project challengers generally want to sue before the targeted project is constructed to 

avoid mootness arguments. FAST-41 also provides that in any action seeking a temporary restraining 

order or preliminary injunction of a covered project, the court shall "consider the potential effects on 

public health, safety, and the environment, and the potential for significant negative effects on jobs 

resulting from an order or injunction" and shall not presume that such harms are reparable. However, 

most courts already consider an injunction's negative impact when balancing the harms and equities. 

Another FAST-41 provision dictates that NEPA challenges can only be brought by those who commented 

on an EIS and did so with sufficient detail to put the lead agency on notice of the claims. With regard to 

standing, many courts have limited NEPA challenges to comments raised within the public review period 

on the EIS (others allow plaintiffs to file suit as long as they can show "injury in fact"). 

MAP-21 reduced the time limit to 150 days after publication of a notice in the Federal Register 

announcing that a permit, license or approval is final, for parties to file lawsuits that challenge agency 

environmental decisions regarding surface transportation projects." However, the preparation and 

announcement of a "supplemental" EIS, when required, restarts to 150-day clock. 

?EFO_RM- Part..l: Further shorten and standardize the statute of limitations for challenees to final ROD 

or claims seeking judicial review of a permit, license or approval issued by a Federal agency for an 

infrastructure project (see Sen ion Ill. A and 111.8). The Portman"·McCaskill Senate bill, Federal Permitting 

lrnprovemcnt Act, that was reportedly supported by environmental and business groups would have 

DISCUSSION DRAFT V2- JULY 24, 2017 13 
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lowered the statute of limitations tram six years to 150 days for all major projects across all sectors. In 

addition, interested parties should be forced to get involved early in a project's review process to 

maintain standing to sue later (RAPID Act proposed a "get-in or get-out" rule). Eliminate the risk of being 

sued when you reopen the ROD for minor changes to the construction contract. Another way to control 

the litigious environment that is delaying (and often stopping) critical infrastructure work may be to 

require any party who brings a challenge against a project's final EIS/ROD, and causes the work to stop, 

to put up a bond'11 that covers the cost of delay; legal fees also should be awarded if the project 

proponent prpvails_ 

IJ.tEQ.RI\il.::_Par!_L Federal environmental rules and regulations that apply to construction site owners 

and operators are complex and cumhersorne and should be enforced on!y by trained staff of 

government agencies. Alternative potential reforms Include: limiting citizen suit penalties to violations 

of objective, numeric limitations rather than subjective, narratiVe standards; extend ···notice period" 

beyond the current 60 days (giving regulatory agencies more time to review notice of intent letters and 

rnitiate formal actions); clarify definition at "diligent prosecution" of alleged violations, thereby allowing 

fr~deral/state authorities to exercise their primacy in enforcement and preventing unnecessary citizen 

suit intervention.:? 

F. Permitting Risk Remains Key Barrier to Infrastructure Investment 

Over the past 15 years, the growth in the use and performance of alternative contracting methods 

procurement of large projects has brought to light some specific environmental risks that need to be 

addressed when design-build is used as the project delivery system. Regarding risk, it is customary for 

the contractor to take on additional reasonable cost and schedule risk related to design, utility 

relocation and environmental compliance. (Reasonable risks are those that can be quantified for cost 

and time, where contractual compensation is provided to contain risk or for which insurance coverage 

can be obtained.) However, recently design-build agreements have included unquantifiable contractor 

risk, such as for managing and remediating pre-existing third-party site contamination.49 This has 

resulted in the contractor assuming unreasonable cost and schedule risk, and in the case of site 

contamination, potential CERCLA liability. Since this risk is unquantified, insurance coverage is difficult if 

not impossible to obtain. 50 

Owners and contractors respond to this risk through the contract vetting process during the 

procurement stage where the contractor attempts to clarify through a question/answer process to gain 

owner approval for amendments to mitigate risk. This process usually generates multiple contract 

addendums causing a protracted and costly procurement process. The contractor addresses any 

remaining unreasonable/unquantifiable risk by adding cost contingencies resulting in higher 

construction costs to the owner or responsible contractors dropping out of the procurement process 

due to excessive risk. 

Compounding this uncertainty is the lack of testing data to accurately characterize contamination for 

disposal, which forces the contractor to speculate on remediation requirements. Contractor 

responsibilities for managing and remediating and arranging for transport of contaminated materials 

creates exposure to long-term CERCLA liability. 

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13HORM: Where the public owner is unwilling to compensate the designer/builder for unforeseen 

events or circumstances, particularly related to encountering hazardous materials, negative 

consequences follow: limited universe of competitive bidders because some will walk away from such 

extreme risk scenarios; shut out of highly-qualified, environmentally-sophisticated firms; inflated 

contract prices because bidders are pricing risk into the contract that is going back to the owner (and 

ultimately being borne by the toxpayer). 

Government is in the best position to bear the following risks: 

Environmental risk associated with unforeseen hazardous material that was not disclosed pre-bid: 

and 

Environmental risk associated with finding out after the contract has been awarded that a part of 

the project site, or any property or waterbody to which the project site drains runoff, is a newlylisted "Superfund" site. 

On all federally funded projects, Congress should: 1) prohibit the transfer of CERCLI\ liability for preexisting contdminatron to the contractor by requiring the public owner (e.g., Departments of 

Transportation (DOT)) to ret;nn generator and arranger status and 2) require the public owner (e.g., 

DOT) to provide contractual relief through cost sharing mechanisms, such as allowances and schedufe 

relief throueh delay clduses that compensdte the contractor for responding to site contamination_ 

IV. Recommended Reforms Specific to the NEPA Process 

A. NEPA Process Issues Compromise Efficient Delivery of Infrastructure 

Projects 

1. Initiating Design-Build or P3 Procurement Prior to Conclusion of NEPA 

Process Drives Up Cost 

In the case of highway work, state DOTs often will initiate the proposal process before they have a 

finalized NEPA ROD. 51 The costs of pursuing these projects is inflated when general contracting firms 

(taking both design and construction responsibility) are brought in before NEPA is complete. Designbuild procurements for large projects are costly. Owner costs include fees for legal counsel, technical 

and procurement consultants. The contractor incurs costs as he advances the project design from the 

schematic stage (provided by the owner) to a preliminary design for cost estimating, performs value 

engineering, reviews the voluminous owner references and contract documents, and engages fully in 

the contract vetting process. Procurement delay of six to 12 months due to NEPA issues is not 

uncommon. This delay extends overhead, labor and consultant costs to owner and contractors and is 

particularly costly to contractors because the level of effort remains steady due to continuation of the 

contract vetting process, continued release of owner documents, and redesign in response to evolving 

owner expectations. Procurement delay results in owners and contractors absorbing substantial added 

procurement costs. [These costs are lost should a NEPA challenge effectively force reopening the NEPA 

process for additional study. Addressing court-ordered NEPA revisions typically takes one or more years 

to complete and usually results in termination of the procurement process, or the owner terminating 

the contract and compensating the contractor awarded the work for mobilization and delay costs. 

Owners, upon satisfying court order NEPA requirements, initiate a new procurement process from the 

beginning.] 

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Under the Federal Highway Administration (FHWA) regulations, prior to NEPA completion, a private 

design-build contractor cannot complete the final design or proceed with construction (23 C.F.R. § 

636.109(b)). If the contracting agency awards a contract prior to NEPA completion, FHWA's 

authorization and obligation (of preliminary engineering and other pre-construction funds) is limited to 

preliminary design (23 C.F.R. § 636.109(b)(l)) and early acquisition of the right of way in accordance 

with 23 U.S.C. § 108. The contract must include termination provisions if the NEPA process concludes by 

selecting the "no-build" or "no action" alternative (23 C.F.R. § 636.109(b)(9)). 52 

BE FORM: For projects involving '·federal action," the project sponsor should not initiate procurement 

until the ROD is issued that closes the NEPA process. Such a change will substantially decrease 

procurement costs and increase the integrity of the NEPA process by removing any notion that the NEPA 

outcome was pre-determined. Another means to reduce owner and contractor costs would be to 

simplify the procurement process by standardizing the design-build agreement for federally funded 

projects. Owners incur sizable legal fees for outside counsel and consultants to draft, contractor vet and 

re-draft design-build agreements for each project. Contractors incur high legal and staff costs as well in 

the vetting process. 

2. Even Minor Construction Changes Couse Major Delay When It Re-Opens 

NEPA; Stifling Pnvate Sector Innovation 

Even minor changes or adjustments to the project design or location- such as small additions or 

changes to right-of-way, small temporary or permanent easements or drainage pond features to 

accommodate schematics- will trigger another round of lengthy coordination at the federal and state 

level and public review and possibly a supplemental EIS. It is common for the project limits, as defined 

during preliminary design and used to establish the NEPA project foot print, to be inadequate to 

accommodate all project aspects- such as drainage features, utilities and construction access. 

Therefore, minor changes to the N EPA footprint are required to construct the project. Because of the 

overarching fear of litigation brought by advocacy groups alleging noncompliance with NEPA's 

procedural requirements, agencies are overzealous in producing a "litigation-proof" EIS. This attitude 

results not just in the over documentation of minor changes (that should not trigger NEPA), but it also 

impacts value engineering the contractor performs during a design-build procurement by stifling 

innovation of design changes capable of capturing larger cost savings. 

Per FHWA regulations, under no circumstances may a private entity have any decision-making 

responsibility in the preparation of any NEPA document (23 C.F.R. § 636.109(b)(6)). After the NEPA 

process is complete, project sponsors may only accept alternative technical concepts (ATCs) if they do 

not conflict with the criteria agreed upon in the environmental decision-making process. (23 C.F.R. § 

636.209(b)). This also is hindering project sponsors' ability to take advantage of private sector 

innovation. 

llf.FORfVI_; Minor changes to a project should NOT result in reevaluation of the project under NEPA. Oe 

rninimis itnpacts do not need a formal reevaluation, but could undergo a review with the owner to prove 

de mimmis. The de minimis threshold could be based the definition of Section 4(f) properties codified in 

49 US. C.§ 303 and 23 U.S.C. § 138, as implemented by the Federal Highway Administration (FHWA) 

through the regulation at 23 C.F.R. § 774. Also, amend FHWA regulations at 23 C.F.R. § 636109(b)(6) 

and 23 C.F.R. § 636.209(b). In addition, if the project sponsor accepts a change (i.e., ATC) as proposed by 

the designer/builder, and it results in project delay, due to the need for further environmental reviews, 

DISCUSSION DRAFTV2-JULY 24,2017 16 
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then the costs associated with that delay should be equally shared by the owner and the general 

contractor. 

To cite a program worthy of replication: Once a natural gas infrastructure project under the 

Federal Energy Regulatory Commission (FERC) jurisdiction is authorized, project sponsors can 

request changes as "variances." FERC will consider approval of variances upon the project 

sponsor's written request, if it agrees that a variance: 

1. provides equal or better environmental protection; 

2. is necessary because a portion of this Plan is infeasible or unworkable based on projectspecific conditions; or 

3. is specifically required in writing by another federal, state, or Native American land 

management agency for the portion of the project on its land or under its jurisdiction 5 3 

AGC recommends that all federal and state agencies regulating approved publicly-needed infrastructure 

have a clearly defined variance process to follow to efficiently make project changes while maintaining 

environmental protection. 5

4 

B. Inefficient Bureaucratic Processes Force Reevaluation of Previously 

Approved NEPA Documents, Decisions 

A final EIS is only valid for up to three years following the last major approval. If no action to advance 

the project has occurred in the last three years, a written reevaluation is required. This may be a case 

where a project has been "shelved" due to lack of funding or simply put aside due to changes in 

statewide or regional priorities. 55 The scope and breadth of the reevaluation generally is dependent on: 

the type and degree of public controversy, possibility or reality of litigation, and the original and 

anticipated types of environmental resources and project impacts. 

RF.FOJ~M: Congress should require agencies to report to congressional committees on the expiration of 

various c•nvironmental reviews/permits. Projects that have completed environmental reviews should be 

prioritized for tech•ral funding. An adequate source of funding should be available before a public 

sponsor initiates any additional environmental reviews or studies. Jn addition, to avoid inefficiencies 

anJ costly delays, it is irnper~t1ve that the environrnentiJ! reviews (see related reform recommendations 

SPction Ill. A) and permitting processes (see reforms in Section III.R) for capital projects be time-limited. 

C. Disagreements Loom Over Role Coordinating Agencies Play in NEPA 

Process 

Some projects are held up by the push-and-pull between the lead agency and the other coordinating 

agencies regarding the scope of decision-making authority afforded to individual agency leaders. 

[{EfORM: Even with the positive reforms of the FAST-41 (see Section liLA), there remains a failure to 

delmeate clear decision-making authority; rather, recent changes create rnore processes rather than 

empowering key decision-makers to move projects forward. Congress should: (1) empower the lead 

agency and CEQ to really make decisions and (2) empower the Office of Management and Budget (OMB) 

to resolve dispute".'/. 

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D. USEPA Plays Commanding Role in NEPA Review Process 

Section 309 of the Clean Air Act empowers USEPA to review other federal agencies' EISs and to make 

those reviews public." USEPA's reviews generally focus on identifying and recommending appropriate 

mitigation measures for the project, which can lead to lengthy back-and-forth negotiations between 

USEPA and the responsible federal agency(ies). If US EPA finds the draft EIS "inadequate," USEPA will 

recommend the draft EIS be formally revised and made available for a second period of public comment. 

USEPA also reviews final EISs to ensure that the lead agency has taken USEPA's comments into account. 

If the "lead agency" does not make sufficient revisions (and USEPA finds the project to be 

environmentally unsatisfactory), USEPA may refer the matter to CEQ for mediation. 58 

Notably, USEPA plays a very powerful role in the NEPA review process during project development by 

serving as a formal "cooperating agency" (see Section II above) and by providing wide-ranging review 

and comment on EISs and other federal NEPA related activities. US EPA also has veto authority for CWA 

Section 404 permit process and may elevate specific cases for further evaluation culminating with the 

Assistant Administrator of the US EPA and an Assistant Secretary of the Army (see Section V.C below). 

f!lf_QB_[\{1_~ A firm "deadline" should apply to all USfPA Section 309 reviews." USEPA should be required 

to participate in all meetings as requested by the lead agency. CEQ should have the power to ultimately 

resolve any disputes (including those referred by other departments or agencies)."' In addition, CEQ 

should issue guidance to delineate the scope and parameters for USEPA's Section 309 reviews to ensure 

con-:.i~tency across USE.PA Regional Offices. Key points related to information/ddta: 

Request only information that is relevant to better decision-making 

Be realbtic about the availability of data 

Agree at scoping (or earlier) on the tools for analyzing impacts 

E. Agencies Struggle with Climate-Change Impacts Analyses 

Federal agencies are- and will continue to struggle with the level of analysis required when assessing 

climate-change impacts under NEPA. On March 28,2017, President Trump released an "Executive Order 

on PJ:9moting Energy Independence and Economic Growth" that effectively rescinds CEQ's Greenhouse 

Gas NEP6 Guidan_~.<e- "Final Guidance for Federal Departments & Agencies on Consideration of 

Greenhouse Gas Emissions and the Effects of Climate."" However, the President's Order does not 

remove the need for agencies to consider climate change in NEPA reviews. 

Agencies and courts reviewing agency actions have long struggled with precisely how to address climate 

impacts. Some agencies include quantitative calculations, some provide only qualitative and other still 

decline to include any analysis on a project-level basis (on the basis that climate change is a global 

phenomenon. Plaintiffs challenging agency NEPA analysis will continue to pursue claims that analysis of 

climate impacts was not done in sufficient detail, or not at all. Courts will remain the driver here, and 

thinner administrative records could be more vulnerable to NEPA-based challenges by project 

opponents. 

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REFORM: The analysis of climate impacts will always vary by agency and by project. It is not clear what 

level of "hard look" is sufficient, particularly because climate change ls a global phenomenon. A courtby-court standard on how to address climate is not conducive to efficient project reviewsY Congress 

should prohibit climate change reviews in NEPA environmental assessments and impact statements. 

V. Federal Permitting Example: The Clean Water Act Section 404 

Permit Process 

Projects that cross wetlands, streams and other features deemed "Waters of the United States" 

(WOTUS) generally require USACE permits and must mitigate their impacts under CWA Section 404. 

Since the 2006 U.S. Supreme Court Rapanos decision, the USACE (and USEPA) have been asserting 

jurisdiction over any wet areas that have a "significant nexus" to downstream navigable waters. 53 This 

test has been met with very little nexus or significance between the actual wetland at issue and 

navigable waters. 

The average applicant for an individual permit spends 788 days and $271,596 to complete the process'' 

(And if the process is beginning with an EIS, it may take three to six years (or longer) until the 

environmental reviews are complete. See Section 11.0 above.) Following are details of the various 

chokepoints the project proponent may encounter during the permit issuance process. 

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A. At-A-Glance look at the CWA Section 404 Permit Process 

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B. 'Chokepoint' Details in CWA Section 4041ndividual Permit Process 

Following is a description of the various chokepoints the project proponent may encounter during the 

permit issuance process. 

1. Jurisdictional Determination 

For public design-build (or P3) construction projects- where the government is placing responsibility on 

the general contractor for environmental permitting- it is increasingly common for USACE to require 

100 percent ground surveying and full delineation- along with field verification by a USACE District 

Engineer- before USACE will issue an Approved JD (jurisdictional determination). USACE staff will not 

accept NEPA analysis findings. More and more, USACE will not approve 404 permit without the 

Approved JD and final comprehensive mitigation plan. The USACE's insistence on better delineation 

data is holding up the permit issuance process because the general contractor does not have access to 

the entire project area to perform field studies until well into the construction process (for example, 

approval of right-of-way acquisitions). As a result, it is impossible to manage cost/risk due to the 

unknowns regarding project schedule and mitigation responsibilities. 

2. Application Adds/Corrections 

Applications for major projects requiring 404 permits rarely, if ever, are processed within the time limits 

set forth in the standard procedures. Agencies can work around strict timelines, including being able to 

start and stop the clock. If the agency's decision is that an application is incomplete or denied without 

prejudice, the applicant will need to resubmit it, which starts a new countdown. Added together, these 

many sequential clocks can create a long process. 

USACE's increasingly high standards for field data/delineations before it will issue a decision on an 

application is bringing the permitting process on some large highway projects to a standstill (see Nl). 

Limited access on design-build projects where the contractor is required to purchase the right of way 

severely limits a contractor's ability to conduct field delineations in a timely manner- causing excessive 

delay to the project. 

Deadlines also can serve as a negative reinforcement, arguing that some agency staff sit on an 

application until their allotted time is almost up before looking at it regardless of how minor or simple 

the task. 

3. Public/Agency Input Process 

Notice must also be sent to all parties who have specifically requested copies of public notices and to 

the appropriate officials at USEPA, the FWS, the NMFS, and state historic preservation officers. When 

Section 404 (or CWA 401- see below) applications are submitted, the agencies accept public comments 

regarding the applications for at least thirty days. If, during the initial comment period, someone 

requests a public hearing regarding the applications, the agencies must issue another public notice 

scheduling a public hearing at least thirty or forty-five days into the future. 

Public notice requirements allow project opponents another opportunity beyond NEPA to challenge and 

stop projects, for which (generally) no contractor relief is provided. Oftentimes, even individuals who 

are not directly affected by the project become involved. This is presenting an opportunity to voice 

tangentially related concerns, or pursue political goals or no-growth agendas, thereby forcing the 

DISCUSSION DRAFTV2-JULY 24,2017 21 
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permitting agencies to spend time and resources processing these concerns that ultimately do not have 

bearing on their permit decision. 

4. Related Reviews/Permits 

When a Section 404 permit application is submitted to the USACE, the agency typically routes the 

application to numerous other agencies for review and comment. Section 404 permit applications are 

routed to USEPA, the USFWS, the state environmental agency, and the state office of historic 

preservation. The commenting agencies have vast and varied concerns that must be addressed by the 

applicant Each requires a slightly different type of alternatives analysis, and demands a somewhat 

distinct conditions, limitations and mitigation approach. 

If the concerns ofthe commenting agencies are not adequately addressed, one or more of the 

commenting agencies may recommend against issuance of the requested permit. 

Section 404 is a single permit, but it encompasses several other authorizations in a timeline of review: 

Need CWA 401 certification from state before a federal agency can issue a permit or license for 

an activity that may result in a discharge to WOTUS; state must certify that activity will not 

violate the water quality standards, or other applicable authorities, of the state (or waive 

Section 401 certification). [This process, in effect, allows for state control of dredge and fill 

activities. A state's review of the proposed construction activity will typically address feasible 

alternatives to the activity, initial and secondary impacts of the proposed activity, mitigation, 

compliance with water quality standards, stormwater/wastewater impacts, flood management, 

protection of rare resources, and other factors that would affect water quality."] 

May need Section 408 authorization (permission from USACE under 33 U.S.C. 408 because 

project will alter or temporarily or permanently occupy or use a USACE-authorized civil works 

project). 

USACE consults with the USFWS and/or NMFS (Consultation I Biological Opinion)- Endangered 

Species Act (ESA) Section 7 consult- if project might affect endangered species. Under the ESA, 

any project with federal involvement or subject to federal oversight may not adversely affect 

federally listed species and habitat- otherwise mitigation strategies to minimize the impacts are 

required. With more than 1,400 species on the list and vast portions of the landscape 

designated as critical habitat, and many more species and areas of land awaiting listing and 

designation decisions, USFWS and NMFS are taking an ever-increasing role in the regulation of 

infrastructure projects. 

National Historic Preservation Act must account for potential impacts to historical and cultural 

resources (SHPO Consultation I Antiquities Permits) 

Fishery Conservation and Management Act (Essential Fish Habitat Consultations) 

Depending on location, Coastal Zone Management Act (CZMA Consistency Determination) and 

Wild Scenic Rivers Act 

Migratory Bird Treaty Act 

Bald and Golden Eagle Protection Act 

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5. USEPA Veto 404(c) or 404(q) Elevation 

The U.S. Environmental Protection Agency (USEPA) has the authority to prohibit, deny, or restrict the 

use of any defined area as a disposal site under section 404(c), may elevate specific cases for further 

evaluation under Section 404(q), and enforces Section 404 provisions. 

6. Litigation 

Agencies are risk-averse, and sometimes choose not to pursue streamlined options out of concern that 

such "short-cuts" will increase litigation risk. Agencies/projects that face scrutiny from stakeholder 

groups want to minimize risk by gathering information, at the least to demonstrate due diligence. 

However, the burden of providing this political protection means asking information that applicants may 

not be able to obtain, or may be unwilling to share (in the case of proprietary information). 

7. Permit Conditions 

Section 404(b) authorizes USEPA to set the environmental standards that must be met by each permit, 

for the disposal of dredged or fill material; USEPA's Section 404(b)(l) guidelines set out at 40 C.F.R. § 

230 establish the environmental criteria for evaluating 404 permit applications. Under the guidelines, 

permittees must complete an alternatives analysis describing how all the practicable alternatives to the 

proposed project were studied, weighed, and presumably rejected for the preferred project. The 

agencies regularly request more data, analyses of more sites, and/or other additional information 

regarding the proposed project and other (presumably) available business opportunities that the 

applicant could pursue in lieu of the project for which a permit has been requested. The Section 

404(b)(l) guidelines also establish a "mitigation sequence" used by USACE: avoid, minimize and 

compensate impacts. 

USEPA's guidelines often are applied in a rigid one-size-fits-all manner, failing to distinguish between 

different types of uses or between projects with net habitat gains-despite some damage to existing 

low-quality habitat-from projects that were simply destructive of habitat. 

C. Recommended Reforms Specific to the 404 Program 

As illustrated by the preceding "chokepoints" analysis, the general reforms discussed in Section Ill of this 

document would serve to improve the efficiency of the 404 program. In particular, a mandatory merger 

of the NEPA and Section 404 permit processes would greatly expedite project decision-making and avoid 

duplication and procedural inefficiencies (see Section Ill. B). In addition, AGC recommends the following 

reforms that are specific to the 404 program. 

1. USEPA's Authority to Veto a Duly Issued Permit Casts Uncertainty on 

Development 

Courts have upheld USEPA's authority under the CWA to change, if not revoke, Section 404 "dredgeand-fill" discharge permits that have already been approved and issued by USACE if it determines that 

the discharge will have an "unacceptable adverse effect" on identified environmental resources. This 

creates uncertainties for Section 404 permittees, their lenders, and others in business with them, which 

drives up financing and construction costs. US EPA has adopted regulations setting forth the process for 

implementing Section 404(c) 65 

B_[JQ_Rl'/1; !\mend CWA Section ~04(c) and- as needed direct USEPA to revise its "unacceptable adverse 

effpct" regulations. 

DISCUSSION DRAFT V2- JULY 24, 2017 23 
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2. Permitting Authorities Are Thwarting Advanced Mitigation, Mitigation 

Banking, and Future Mitigation Investments 

Permitting Authorities Are Thwarting Advanced Mitigation, Mitigation Banking, and Future Mitigation 

Investments. Complex procurement strategies, construction schedule risks, habitat alteration, and 

competition for potential mitigation sites can encumber the already difficult task of mitigating for "like" 

value and function and reinforce the need for project proponents to examine mitigation strategies as 

early as possible. There is a shortage of wetland mitigation banking credits in some parts of the country 

and many USACE Districts are unwilling to accept in-lieu fee arrangements. President Trump's Executive 

Order 13778 directing the US EPA and USACE to modify or rescind the 2015 Waters of the United States 

(WOTUS) is likely to stall the establishment of any new mitigation banks because it's likely that the 

federal government will eventually relinquish control over work in remote streams and isolated 

waters/wetlands. 

What is more, federal permitting agencies generally will not accept preliminary jurisdictional 

determinations resulting from the NEPA process and will hold up project approvals until they have data 

collection (field surveys/delineation) from the entire project site. The project may be well underway 

before the design-build contractor has access to 100% of the parcels (e.g., right-of-way acquisition goes 

well into the project). As such, in the pursuit phase of the project, mitigation costs are unquantifiable 

because the quantity of WOTUS impacts and the quality of the waters impacted is unresolved. This 

unknown, combined with the lack of wetland bank capacity, requires contractors to speculate on 

mitigation costs- which can reach in the hundreds of thousands of dollars per project 

These uncertainties inhibit efforts to optimize construction phasing, schedules and to minimize cost and 

delay. What is more, design-build contracts that transfer the obtaining of Section 404 permits to the 

contractor generally provide no contractor cost or schedule relief for permitting delays or mitigation 

costs at the outset of a procurement This forces contractors to add cost contingencies resulting in 

higher construction costs to the owner and/or responsible contractors dropping out of the procurement 

due to untenable risk. 

REFORM: The use of remote sensing, geographic information systems (GIS) mapping software, and 

decision support systems for evaluating conservation strategies have made it possible to evaluate areas 

where WOTUS impacts must be avoided and identify areas for mitigation investments very early in the 

environmental planning process. Federal permitting agencie.s should accept NEPA planning-level 

decisions to support advance mitigation strategies that are both more economical and more effective 

frorn an environmental stewardsh'1p perspective. Revi<;e the "2008 Mitigation Rule'' 61 at 33 C.F.R. § 

)32.3(b)(2) and (3) and USACE's Regulatory Guidance Letter (RGL) 16-01 on the procedures for 

deterrnining what geographic areas on a project are WOTUS. 

To address the lack of mitigation banking capacity in many regions of the country, USACE should develop 

a national m-lieu fee mitigation option whereby sponsors of large projects may contribute funding, at 

rnitigation n1arket rates, to a national account when bank credits are unavailable at the tlrne the 

USACE/USEPA is in position to issue the permit. The funding from the national account would be 

appmtioned among the seven USACE Districts base on where impacts were taken and applied toward 

habitat preservation and promoting banking opportunities. 

DISCUSSION DRAFT V2-JULY 24, 2017 24 
169 

AGC of America ~((Jdt flilJ\':>~0( 1>\lLIJ Llr-.Li{'\1 CONJR'\C IOR'i(Jf AMI!~IC>\ 1.\"'- -~<oc:•' Building on Experience YEARS 

3. Delay on the RHA Section 408 Side Puts Off the CWA Section 404 Review 

Process and Further Delays Construction 

Construction projects are being delayed because of Section 408 burdens." USACE will not even begin 

to process many CWA Section 404 Nationwide and individual permits until the 408 permission is 

granted. This means that delay on the River and Harbors Act (RHA) Section 408 side puts off the CWA 

Section 404 review process and further delays construction. And, many of the reviews required under 

RHA Section 408 may be reviewed, yet again, under the CWA Section 404 process. 

RHA Section 14 69 provides that the Secretary of the Army may grant permission for the alteration or use 

of works built by the United States when such occupation or use will not be injurious to the public 

interest and will not impair the usefulness of such work, As a result, USACE requires that applicable 

construction projects are reviewed to determine if any of the proposed activities may affect a federal 

easement, right of way, property, levee, etc. Construction projects possibly subject to this process may 

include but are not limited to highways crossing Corps' property, bridges built over USACE flood control 

projects, and simply modification of existing Corps' projects-e.g., levees-by state and local entities. 

USACE has recently undertaken action to more rigorously ensure compliance with Section 408, setting 

forth nine steps to obtain the 408 permissionm Those steps include pre-coordination, written request, 

required documentation (including environmental compliance, if applicable), district-led Agency 

Technical Review (ATR), Summary of Findings, division review, HQUSACE review, notification, and postpermission oversight. 

Not all steps are applicable to every RHA Section 408 request, such as Division or Headquarters offices 

review. That stated, the Corps requires the RHA Section 408 requester to provide all information that 

the district identifies as necessary to satisfy all applicable federal laws, executive orders, regulations, 

policies, and ordinances. In addition, the Corps needs to review the relevant project area under the 

requirements of NEPA and other environmental statutes (e.g., the Endangered Species Act) where 

applicable. USACE must also consider factors that may be relevant to the public interest depend upon 

the type of USACE project being altered and may include, but are not limited to, such things as 

conservation, economic development, historic properties, cultural resources, environmental impacts, 

water supply, water quality, flood hazards, floodplains, residual risk, induced damages, navigation, shore 

erosion or accretion, and recreation. And, the evaluation must consider information received from the 

interested parties, including tribes, agencies, and the public. AGC is concerned that with such rigor has 

come redundant, administratively burdensome and inefficient 408 permission processes, especially in 

the broader context of federal environmental review and permitting. 

HUORMS: AGC recommends that USACE undertake the issuance of a new regulation or guidance 

<JIIowing for the concurrent processing of the RHA Section 408 permission and CWA 404 permit 

As recommended by the r~ational Waterways Conference. AGC agrees that the Corps should clarify the 

dpplication of Section 408 to "works," and not undeveloped land or other features of a project, even if 

owned by the Corps and within the project's boundaries. 

According to the statute, the Corps' permission is required with respect to activities that rnay 

affect various "works" that are "built by the United States. , for the preservation and 

improvement of any of its navigable waters or to prevent floods." The Circular states that it 

applies in the case of any "alteration or occupation or use of the project" (EC 1165·2·216, ~ 6.a) 

DISCUSSION DRAFT V2- JULY 24, 2017 25 
170 

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Building on Exp~rit•nu.• YEARS 

(emphasis added). '

1 The language could be and seemingly has been interpreted to suggest 408 

applies to any proposal that would alter or occupy any portion of a Corps project, which in turn 

suggests anything'withm the project's property boundaries. 1

·' Howew~r, that is not what Section 

·108 says, nor is it what Congress intended in enacting Section 14 of the Rivers and Harbors Actn 

A broad reference to a Corps "project" without additional clarification can lead to a District 

office to require the 408 process for any proposal that involves any real estate within a Corps 

project-" A common example would be a highway or pipeline that crosses Corps' property." To 

be clear, the Corps has a right to review and approve that proposal as property owner and 

potentially as a regulator under Clean Water Act Section 404 or other authorities. 1

b However1 if 

the project does not touch or affect the "works" regulated under Section 408, then the Corps 

should not overlay additional408 requirements beyond whatever other procedure may be 

required. 

Specifically concerning local flood control protections, like levees, AGC agrees with the Section 408 

Coalition and the Mississippi Valley Flood Control Association: Congress through legislation and/or the 

Corps via regulation or guidance should clarify that the jurisdiction of RHA Section 408 does not extend 

to alterations or improvements made or allowed by the local sponsor (non-Federal interests) to the 

flood control projects for which they are responsible for operation and maintenance. 

VI. AGC Staff Contacts 

Jeff Shoaf, Senior Executive Director, Government Affairs, (202) 547-3350 or (202) 215-2124, 

shoafj@~-"2.[g 

Leah Pilconis, Senior Counsel, Environmental Law and Policy, (703) 837-5332, pilconisl@agc.org 

Jimmy Christianson, Regulatory Counsel, (703) 837-5325, christiansonj@agc.org 

Melinda Tomaino, Director, Environmental Services, (703) 837-5415, tornainom(iilagc.org 

Scott Berry, Director, Utility Infrastructure Division, Environment, and Trade, (703) 837-5321, 

ber~.Y2@agc.org 

Sean O'Neill, Director, Congressional Relations/Infrastructure Advancement, (202) 547-8892, 

Q_r}_~_i_lli;_@i:!~ 

Brian Deery, Senior Director, Highway and Transportation Division, (703) 837-5319, deeryb(ciJagc.org 

1 Since "Waters of the Unlted States" are under the jurisdiction of the Federal Government, projects such as 

constructing pipelines across rivers are a federal action. 2 40 CF.R. § 1508.16. 

3 40 CF.R. § 1508.5. 4 Note that some states (e.g., North Carolina, Massachusetts and Washington) have requirements that are 

like the requirements established for federal agencies by NEPA. Therefore, if your construction project is 

entirely or partly financed, assisted, conducted, regulated, or approved by a state agency in one of these 

states, you should consult with state agency officials to ensure that these requirements have been met. 5 No hard-and-fast regulatory definition of "purpose and need" exists. However, as it has been interpreted, 

the statement cannot be so narrow that it effectively defines competing "reasonable alternatives" out of 

DISCUSSION DRAFTV2-JULY 24,2017 26 
171 

consideration. The "purpose" of an action may be a discussion of the goals and objective of an action. The 

"need" may be a discussion of existing conditions that call for some improvement. 

6 The draft EIS should be prepared in accordance with the scope of the project and, to the fullest extent 

possible, meet requirements of§ 102(2)(C) of NEPA. The CEQ regulations specify requirements for inviting 

and responding to comments on the draft EIS. 42 U.S. C.§ 4332(2)(C); 40 C.F.R. § 1S03. 

7 The final EIS should respond to any participating agency comments and address any inadequacies in the 

draft EIS. 

8 40 c.F.R. § 1502.25(b) (2014). 9 Memorandum from Nancy H. Sutley, Chair, Council on Envtl. Quality, to Heads of Federal Departments and 

Agencies on Improving the Process for Preparing Reviews under the Nat' I Envtl. Policy Act (Oct. 2011). 

10 40 C.F.R. § 1502.25(a) (2014). In the agency's much-cited "Frequently Asked Questions," the CEQ clarified 

that project proponents who will need permits under other environmental laws are to "integrate the NEPA 

process into other planning at the earliest possible time to [e)nsure that planning and decisions reflect 

environmental values, to avoid delays later in the process, and to head off potential conflicts." See "Forty 

Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations," 46 Fed. Reg. 

18,026, 18,029 (Mar. 23, 1981). These FAQs have not received equal deference from courts as the CEQ 

regulations. 

11 USEPA's National Hard rock Mining Framework, U.S. Envtl. Prot. Agency app. C-2 and C-3 (Sept. 1997) 

("NEPA offers the opportunity to identify permit conditions, including those needed to avoid or minimize 

impacts or to mitigate for unavoidable impacts."). See infra note 30. 

12 NAEP annually reports information on El5 time frames by analyzing information published by agencies in 

the Federal Register, with the Notice of Intent to complete an EIS as the "start" date, and the Notice of 

Availability for the final EIS as the 1

'end" date. However, AGC members' experiences show that it's common 

for large and controversial projects to take even longer than these numbers reflect. See e.g., Federal 

Highway Administration, "Estimated Time Required to Complete the NEPA Process," online at1J.Ltps://www.environrnent.fhwa.dot.f~Wlli!}fu~!1epatirne.asp and U.S. Department of Energy, "Record of 

Decision (ROD)" online at hlli>.:;:l[~Q-"f.f'o'Ll'.Q.IIll1_<;Ra/record-decision-[9J!. 

13 U.S. Gov't Accountability Office (GAO), GA0-14-370, National Environmental Policy Act: Little Information 

Exists on NEPA Analyses, at 14 (2014). 

l1fd. See also 2014 GAO report noting that "there is no government wide mechanism [for agencies to track) 

the cost [or time) of completing NEPA analyses ... However, the Department of Energy (DOE) tracks limited 

cost data associated with NEPA analyses." 15 Although large projects often take a decade or longer to permit, the Common Good report assumes that 

the avoidable delay on major projects is six years. 

16 Pub. L. No. 112-141, 126 Stat. 405 (2012). 

17 Pub. L. No. 113-121, 128 Stat. 1193 (2014). 

18 Energy Policy Act of 200S, Pub. L. No. 109-S8, 119 Stat. 594 (Aug. 8, 200S) (EPAct 200S). 

19 42 U.S.C. § 4370(m); https://www.congress.gov/ll4/bills/hr22/BILLS-ll4hr22enr.pdf. 

20 42 U.S.C. § 4370m-2(a). 

11 FAST Act Pub. L. No. 114-94, 129 Stat. 1312 (2015); !d.§ 41002(c)(1)(C)(ii)(ll)(aa). (bb). The final completion 

date in the recommended performance schedule for each category cannot exceed the average time to 

complete an environmental review or authorization for projects within that category. The benchmark time 

periods for decisions on environmental reviews and approvals are to be calculated based on an analysis of 

the time required to complete them for projects within the relevant category of covered projects during the 

preceding two calendar years. 

21 /d. § 41002(c){1)(C)(ii)(ll)(cc). 

23 Pub. L. No. 112-141, § 1306, 126 Stat. 40S, 537-38 (2012) (creating 23 U.S. C.§ 139(h)(6)). Failure to meet 

this deadline results in a financial penalty: rescission of funding from the relevant office at the delinquent 

agency at a weekly rate ranging from $10,000 to $25,000. 23 U.S.C. § 139(h)(6)(B). 

DISCUSSION DRAFT V2-JULY 24, 2017 27 
172 

24 Pub. L. No. 112-141, § 1309, 126 Stat. 40S, S39-40 (2012). 

zs Responsibly and Professionally Invigorating Development Act of 2014, S. 2641, 113 Cong. (2014). 

25 16 U.S.C. § 824(p) ·Siting of interstate electric transmission facilities. 

27 See "Guidance for Federal and State Agencies for the Processing of Federal Authorizations in Cooperation 

with the FERC" online at https://www.fer>dl.QV/industries/gas/enviro/epact-gas-guidance.pdf. 28 https ://www. ferc.gov /whats :.new /comm· meet/10 190§.LI.:....2_jlQ!_. 29 18 C.F.R. § 1S7.22. 

30 /d. With respect to the federal-authorization deadline provision, FERC's regulations also provide that, for 

certificate applications requiring an EA or an EIS, "notice of a schedule for the environmental review will be 

issued within 90 days of the notice of the application, and subsequently will be published in the Federal 

Register. 18 C.F.R. § 1S7.9(b). 

31 EPAct 200S § 313(a)(3), (b), codified at 1S U.S.C. §§ 717n(c)(2); 717r(d)(2). 

32 42 U.S.C. § 4370m-4(a), paraphrased. 

33 Pub. L. No. 112·141, §§ 130S, 1314, 126 Stat. 40S, S35, 547 (2012). 34 Pub. L. No. 113-121, § 1005, 128 Stat. 1193, 1203 (2014). Section 100S also promoted project acceleration 

through the following measures: encouraging the establishment of new categorical exclusions from 

environmental review requirements, enhancing transparency and public reporting requirements on the 

status and progress of environmental reviews, and facilitating the acceptance of environmental review 

documents approved by another agency. 

35 See 32 C.F.R. § 6S1.14(e) (2014) ("Several statutes, regulations, and Executive Orders require analyses, 

consultation, documentation, and coordination, which duplicate various elements and/or analyses required 

by NEPA and the CEQ regulations; often leading to confusion, duplication of effort, omission, and, ultimately, 

unnecessary cost and delay. Therefore, Army proponents are encouraged to identify, early in the NEPA 

process, opportunities for integrating those requirements into proposed Army programs, policies, and 

projects. Environmental analyses required by this part will be integrated as much as practicable with other 

environmental reviews, laws, and Executive Orders (40 C.F.R. § 1S02.2S). Incorporation of these processes 

must ensure that the individual requirements are met, in addition to those required by NEPA."). 

35 The "201S (update) Red Book-- Synchronizing Environmental Reviews for Transportation and Other 

Infrastructure Projects" describes a process that satisfies the NEPA requirements and synchronizes 

environmental permitting for all agencies involved. It includes examples of successful NEPA/404 merger 

process agreements whereby the documentation and coordination conducted comply with NEPA and any 

preferred alternative selected under the joint process comply with CWA Section 404(b)(1) guidelines. 37 23 U.S.C. § 168; 23 U.S.C. § 139(g). See infra note 32. 38 MAP-21 § 1319; 23 U.S. C.§ 139(n), See https:/lwww.fhwa.dot.gov/n.liillZllguidance/guideaccdecer.cfm. 39 MAP-21 §§ 130S, 1318 (amending 23 U.S. C.§ 139(b)). 40 The federal lead agency may adopt and use "planning products" in proceedings for any class of action in 

the environmental review process. "Any planning product adopted by the Federal lead agency in accordance 

with this section may be incorporated directly into an environmentaL document." However, 10 conditions 

are spelled out in statute and participating agencies, the lead agency, and project sponsors must all concur 

that these conditions have been met. MAP-21 § 1310. 

"FAST Act§ 1304; 23 U.S.C. § 139(d)(8). 

42 The "Environmental Consequences" section of the EIS describes the impacts of project alternatives on the 

environment and documents the methodologies used in evaluating these impacts. Information in this section 

is used to compare project alternatives and their impacts. This section should describe in detail both the 

impacts of the proposed action and the potential measures that could be taken to mitigate these impacts. 

Mitigation must be considered for all impacts, regardless of their significance. Environmental impacts should 

be discussed in terms of their context and intensity. 

43 In late 2016, FHWA and the U.S. Fish and Wildlife Service developed and deployed a first of its kind 

Rangewide Programmatic Consultation for the Indiana and Northern-long eared bat. 

DISCUSSION DRAFTV2-JULY 24,2017 28 
173 

~~'~'"gfc6.m~rL~-~ 'lliD 

Building on Experience YEARS 

44 To meet the requirements of the Environmental Justice (EJ) Executive Order (EO) 12898, the DOT Order 

5610.2(a), and the FHWA revised EJ Order 6640.23A, a project involving Federal action must consider the 

potential for "disproportionately high and adverse" effects on minority and low-income populations. CEQ has 

guidance for agencies on how to address environmental justice under NEPA: https://ceg.doe.gov/docs/cegregulations-and-guidance/regs/ej/justice.pdf. In addition, USEPA has guidance affirming its commitment to 

consider EJ in environmental permitting: http://www.epa.gov/environmentaljustice/plan-ej/permitting.html. 

45 A project sponsor is generally mindful of previous judicial interpretation when preparing NEPA 

documentation in an attempt to prepare a "litigation-proof' E15. CEQ has observed that such an effort may 

lead to an increase in the cost and time needed to complete NEPA documentation, but not necessarily an 

improvement in the quality ofthe documents ultimately produced. Council on Environmental Quality, "NEPA 

Study of Effectiveness After Twenty-five Years," p. iii. 

46 MAP-21 § 1308; 23 U.S.C. § 139(1). 

"Possible bonding calculation methods/factors to consider: (i) Transportation agencies typically assess 

liquidated damages based on "end user cost," per hour or per day. (ii) DOTs and FHWA have a good 

understanding of their assigned project teams daily overhead and engineering costs to maintain the team 

during delays- this cost could be calculated on a per day basis. (iii) If a contract team is already under 

contract, there is usually a daily rate for the jobsite overhead costs. (iv) It may also be appropriate to consider 

the costs associated with a state acquiring specific project funding through a public bond. (v) And, finally, the 

loss of federal funds committed and not used within the determined funding period. These cost factors could 

be combined, based on the project and the impact of delays. 118 All environmental statutes which authorize citizen suits bar such suits if the federal or state government is 

"diligently prosecuting" an action against the same violator. But see Yadkin Riverkeeper, Inc. v. Duke Energy 

Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015) (a government enforcement action must not 

only be brought, but also managed, in good faith, to be a compliance bar to a CWA citizen suit). 

49 Recently, more owners are attempting to transfer this risk to the contractor through provisions that limit 

the contractor's compensation for 11Unknown" contamination (i.e., any contamination not disclosed by owner 

or reasonably ascertainable by contractor due diligence). Disclosures normally contain a Phase I ESA that 

includes a federal, state and local regulatory database search that lists and provides cursory information 

addressing all recorded site contamination within and adjacent to the project. This places the contractor on 

notice of every documented occurrence of contamination, such as reportable spills. 

50 Contamination risk is often unquantifiable, due to inadequate site investigation/testing data provided by 

the owner, or unavailable through contractor due diligence. Sampling and testing areas of suspect 

contamination within the proposed project right-of-way may be the only means to reasonably assess these 

risks. Owner testing (if it's even performed) is oft'en limited and inadequate to allow the contractor to 

adequately and reliably price his risk or obtain insurance. 51 In 2007, FHWA issued a final rule revising FHWA's regulation in 23 C.F.R. §§ 630, 635, and 636 for designbuild contracting. The rule allowed contracting agencies to issue design-build RFPs, to award contracts, and 

to issue notices-to-proceed for preliminary design work prior to the conclusion of the NEPA process. 52 The contract must also include provisions preventing the contractor from proceeding with final design or 

construction activities prior to the completion of the NEPA process (23 C.F.R. § 636.109(b)(3) and 771.113(a)). 

FHWA may only issue additional authorization for final design and construction once the NEPA process 

concludes and selects a build option (23 C.F.R. § 636.109(d)). 53 Variances are not specifically mentioned in FERC's regulations but rather in its standard best management 

practices for operators found in the "UPLAND EROSION CONTROL, REVEGETATION, AND MAINTENANCE PLAN" and 

"WETLAND AND WATERBODY CONSTRUCTION AND MITIGATION PROCEDURES." Note that these plans are 

referenced in the regulations at 18 C.F.R. 380.12(i)(5) and 380.12(d)(2)- but not the details of the plans. Both 

plans were updated in 2013, but the variance process has been in place since at least 2003. See Sections I.A., 

Applicability in these online documents: https://www.ferc.gov/industries/gas/enviro/plan.pdf; 

https://www. ferc.gov lind ustries/gas/ enviro/proced u res.pdf. 

DISCUSSION DRAFTV2-JULY 24,2017 29 
174 

54 Variances are not specifically mentioned in FERC's regulations but rather in its standard best management 

practices for operators found in the "UPLAND EROSION CONTROL, REVEGETATION, AND MAINTENANCE 

PLAN" and "WETLAND AND WATERBODY CONSTRUCTION AND MITIGATION PROCEDURES." Note that these 

plans are referenced in the regulations at 18 C.F.R. 380.12(i)(5) and 380.12(d)(2)- but not the details of the 

plans. Both plans were updated in 2013, but the variance process has been in place since at least 2003. See 

Sections I.A., Applicability in these online documents: https://www.ferc.gov/industries/gas/enviro/plan.pdf; 

Reevaluations are not required under the National Environmental Policy Act (42 U.S.C. § 4321) or Council 

on Environmental Quality (CEQ) regulations (40 C.F.R. §§ 1S00-1S08). They are, however, required by the 

FHWA/FTA regulations, (23 C.F.R. § 771.129). 

56 Unlike other environment-related statutes, no individual agency has the final say with regard to NEPA's 

environmental review requirements. This absence of enforcement authority is sometimes cited as the reason 

that litigation has been chosen as an avenue by individuals and groups that disagree with how an agency 

meets NEPA's mandate or EIS requirements for a given project. (For example, a group may charge that an EIS 

is inadequate or that the environmental impacts of an action will in fact be significant when an agency claims 

they are not). Currently, CEQ is charged with providing oversight and guidance to agencies with regard to EIS 

preparation. USEPA is required to review and comment publicly on the environmental impacts of proposed 

federal activities, including those for which an EIS is prepared. EPA is also the official recipient of all EISs 

prepared by federal agencies. However, neither agency has enforcement authority with regard to an agency's 

environmental review requirements. 

57 42 U.S.C. § 7609(a). 

58 See CEQ's regulations at 40 C.F.R. § 1S04. 

59 Pursuant to USEPA's ~vise_Q_guidelines on NEPA reviews, since October 2012 the agency has accepted 

electronic EIS filings only- using e-N EPA, an online system for submitting EISs in .PDF format. This paperless 

process should facilitate a faster review and response timeline. 

60 See supra note 1S. The head of the department or agency must make the referral to CEQ within 2S days 

after the notice of availability of the FE IS (final Environmental Impact Statement). CEQ determines whether 

to take the referral based on several criteria, including a determination of whether the issue is of national 

importance. If the CEQ takes the referral, several options currently are available for resolution, including 

making recommendations to the President. The most typical outcome is the publication of Findings and 

Recommendations. The referral process focuses on the underlying proposed action and how it does/does not 

meet the policy goals of NEPA, rather than procedural compliance with N EPA. 

51 NEPA requires an assessment of the impact on the environment of a proposed Federal action including 

rulemakings, permitting, overarching programmatic decisions, and specific projects- including some 

construction projects. The August 2016 guidance, which the White House has rescinded, encouraged 

agencies to quantify direct and indirect GHG emissions for construction projects (and other actions) where 

NEPA applies, as well as, short-term and long-term effects, cumulative effects and impacts from connected 

actions-as well as for all the alternative options being evaluated, including the option of taking no action. 52 See e.g., Wild Earth Guardians v. Jewell, 2015 WL 4886082, slip op. (D. Wyo. 201S) (court simply required 

that the climate issue be identified and discussed). But other recent cases have found a much more 

comprehensive review of climate impacts to be deficient. 53 Rapanos v. United States, 547 U.S. 715 (2006). 

"ld. 

65 The level of state responsibility, and autonomy of the state review, vary greatly, from cursory review or 

waiver of review (with USACE carrying most of the responsibility). to in-office review of draft USACE permits, 

to a full blown independent technical review by the state, assuming a significant component of program 

responsibility. 

65 See 40 C.F.R. § 231.1 et seq. 

DISCUSSION DRAFTV2-JULY 24,2017 30 
175 

AGC of America[:((«@) l!!lN:>:.OU"-1ll)CLNlRAI C(),'l)f<t\t f()I{S()f:\Mllll(:\ '-~-~-'-""'·:)~ 

Buildin!~ on hperit..'nc·t· YEARS 

67 1n 2008, USACE and USEPA published compensatory mitigation rules (2008 Mitigation Rule). See 73 Fed. 

Reg. 19,594 (Apr. 10, 2008). While USACE makes the final determination regarding the mitigation conditions 

included in the permit, USEPA retains the authority to veto the permit if it concludes that the mitigation is 

not adequate. 

68 See http:/ /www.nola.com/environment/index.ssf/2017 /05/corps attempting to speed coas.html; 

.~_t!fldf!:!ww. j o u rna !seen e. com/news/waitIng-on-the-fin a !-leg-of-be rl i n-g-m yer s-pa rkw a y/ art ic!e 7 2 b28f28-

70 USACE Policy- Engineering Circular 1165-2-216. 

71 https://waterways.org/wordpress2/wp-content/uploads/2014/10/NWC-Comments-WRRDA-WebinarIJ.I,llf[L 

72 /d. 73 /d. 74 /d. 

"id. 

76 /d. 

DISCUSSION DRAFT V2-JUL Y 24, 2017 31 
176 

ACC of America L:(dl0p lllt '\C,'-UUAilD(.lNi.KAI.{0N11&\(l!~lhOit\M!Rl(.'\ : ~-"'j··~o~,·/ Hui!din~ on Experiente YEARS 

Appendix 1: Expedited Environmental Review of Infrastructure 

Projects- FAST-41 Highlights 

Title 41 of the Fixing America's Surface Transportation Act of 2015 {FAST-41) 

PL 114-94 {42 U.S.C. §§ 4370m- 4370m-12) 

Project sponsors can apply to a new federal oversight entity, the Federal Permitting Improvement 

Steering Council (Council), for expedited environmental review as a "covered project" 

Statutory definition of the term "covered project" dictates scope: Any activity in the United States 

that requires authorization or environmental review by a federal agency involving construction of 

infrastructure for renewable or conventional energy production, electricity transmission, surface 

transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, 

manufacturing, or any other sector as determined by a majority vote of the Council thatSubject to NEPA, likely cost >$200M, doesn't quality tor streamlining under any applicable law•• 

or 

Subject to NEPA, size/complexity warrant enhances oversight and coordination (opinion of 

Council)- e.g., projects subject to approvals by more than two federal agencies and/or need EIS 

**Transportation projects subject to MAP-21 and water resources projects subject to the Water 

Resources Reform and Development Act of 2014 benefit from expedited permitting and environmental 

review procedures. 

Federal Permitting Improvement Council: Includes an Executive Director appointed by the President 

and representatives from 10 federal departments (Agriculture, Army, Commerce, Defense, Energy, 

Environmental Protection Agency, Housing and Urban Development, Homeland Security, Interior, 

Transportation), three independent agencies (Federal Energy Regulatory Commission, Nuclear 

Regulatory Commission, Advisory Council on Historic Preservation), the Office of Management and 

Budget (OMB) Director, and the Council on Environmental Quality (CEQ) Chairman 

Streamlining Measures: Coordinates NEPA review across federal agencies and coordination of state 

environmental review with federal NEPA process; improved and early communication with federal 

agencies re: necessary permits, content, and review timelines; standardized, enforceable schedules 

for environmental review and permitting; processes for resolving issues and modifying timetables; 

shortened timeframes tor legal challenges; increased transparency/accountability in the federal 

environmental review process by requiring posting of specific info on "covered projects" to online 

federal permitting dashboard (includes status reports explaining project status, delays) 

REVIEW & PERMITTING TIMELIN_ES: Agencies must issue decisions on environmental review or 

authorizations not later than 180 days after the date on which all necessary information is in the 

agency's possession. Pub. L. No. 114-94, § 41002(c)(1)(C)(ii)(ll)(cc). 

PROBLEM: THESE DEADLINES ARE NOT SI8J£T.Q!l. ENFORCEABlt:. The Act states that "each 

agency shall conform" to these dates. But the Act further provides for specific next steps if the 

schedule is not met by an agency; the consequences tor failure to act on a project is to publish 

"an explanation of the specific reasons for tailing or significantly risking failing to conform to the 

DISCUSSION DRAFTV2-JULY 24,2017 32 
177 

completion date and a proposal for an alternative completion date," and monthly updates 

thereafter. Pub. l. No. 114-94, § 41007(c)(2)(f). The Act also gives agencies discretion in 

determining when they have sufficient information to make a decision on a project, and 

issuance of a final decision must occur no later than 180 days thereafter. See Part 

41002(c)(1)(A)(ii)(ll)(cc). It appears that time limits may vary if an agency determines more 

information is needed or demonstrates a reason for missing the completion date (theoretically 

could just keep asking for more info and/or proposing alternative completion dates- which is 

what happens without expedited review). See also OMB & CEQ Guidance referenced below, 

Section 4.3 "What happens if an agency fails to conform to the permitting timetable?" on 

page SO. 

REFORM: TIM ELINE/SCHEDULE SHOULD BE MANDTORY, NONDISCRETIONARY DUTY. Any 

objections that are not raised or resolved by the deadlines are waived and the procedure is 

deemed complete and you move on to the next step. 

OMB and CEQ Guidance- Guidance ta Federal Agencies Regarding the Environmental Review and 

Authorization Process far Infrastructure Projects (Jan.13, 2017) 

lliJPlLiwwwJlQfll1it2oll§.rformance.gov/sites/w;.rmits.performance.gov/files/docs/Officiai%20Signed%2 

Q£AST-41 %20Guidance%20M-17-14%202017-01-13Jllif 

Addresses the statutory requirements of FAST-41 

Explains the federal Permitting Dashboard- online framework for tracking covered projects, 

https://www. permits. perform a nee .gov I 

Builds on an Executive Order and two Presidential memoranda issued during the Obama 

administration 

************************** 

Excerpt From Guidance- Page 50 

E. Coordinated Project Plans (CPPs) and Permitting Timetables 

4.36. What happens if an agency fails to conform to the permitting timetable? 

Agencies should always try to meet the agreed upon completion dates as originally proposed or as 

modified using the procedures described above. However, if a federal agency fails to conform to a 

completion date for agency action on a covered project or is at significant risk of failing to conform with 

such a completion date, the agency shall take the following actions. 

First, as soon as the agency misses the date or becomes aware that it is at substantial risk of missing 

the completion date, consult with the facilitating or lead agency, as applicable, to establish an 

alternative completion date. It may not always be possible to establish an alternative completion 

date. For example, a completion date may not be modified within 30 days of the completion date; 

nor may such date be modified without undergoing the consultative process outlined in Section 

4.31. 

Second, "[p]romptly submit to the Executive Director for publication on the Permitting Dashboard 

an explanation of the specific reasons for failing or significantly risking failing to conform to the 

completion date and a proposal for an alternative completion date." [198] OMB and CEQ 

DISCUSSION DRAFT V2- JULY 24, 2017 33 
178 

recommend that the agency send this explanation and alternative completion date to the Executive 

Director within 3 business days of the missed completion date or when the agency becomes aware 

of the risk. 

Third, "[e]ach month thereafter until the agency has taken final action on the delayed authorization 

or review, submit to the Executive Director for posting on the Permitting Dashboard a status report 

describing any agency activity related to the project." [199] 

[198]42 U.S.C. § 4370m-2(c)(2)(F)(ii)(l)-(11). 

[199] 42 U.S.C. § 4370m-22(c)(2)(F)(ii)(lll). 

************************** 

Trump Executive Order- Expediting Environmental Reviews and Approvals for High Priority 

Infrastructure Projects (Jan. 24, 2017) 

h tt ps ://www. white IJ.9Jli."'EQ!dth e_:Jm'S s-officej 2 0 17/01/2 4/ executive -order -e xped iti ng-e n vi ron menta 1-

reviews-a nd -approva Is-high 

Provides for the designation of "high priority" infrastructure projects, to be made by the Chairman 

of CEQ in response to requests from state governors or the heads of federal departments/agencies 

For any project so designated, CEQ is directed to coordinate with the relevant federal agency 

and establish expedited procedures and deadlines for completing environmental reviews and 

approvals nina manner consistent with law11 

If the deadlines are not met, the agency head must provide a written explanation to CEQ 

Order does not mention FAST-41 or the OMB/CEQ guidance document 

DISCUSSION DRAFT V2- JULY 24, 2017 34 
179 

BACKGROUNDER 

AGC's Flowchart of Environmental Approvals for Infrastructure Projects 

AGC of America created this poster-sized flowchart to diagram and describe the environmental review and 

permitting process for a federally-funded or federally-permitted infrastructure project in the United States.; 

So you want to BUILD? Good luck with that.. 

Before breaking ground, most large infrastructure 

projects must receive many environmental 

approvals pursuant to many environmental laws 

administered by many different regulatory 

agencies and program offices. 

These projects generally do not qualify for 

efficient general permitting procedures and 

must obtain extremely costly and timeconsuming individual permlts 1 on a project-byproject basis. 

From top to bottom, AGC's flowchart walks you 

through the environmental aspects that need to be 

considered at each stage of a project: 

BEGIN PlANNING [Grey Boxes- Top]: identify 

property, perform preliminary engineering and 

environmental site assessments and studies. 

NEPA PHASE [Red Sign - Top]; identify the 

AGe's Updated Flowchart- Discussion Draftv2: June 14~ 2017 

project's purpose and need, study environmental impacts and alternatives, conduct public/agency 

outreach, publish a final environmental impact statement (EIS), including mitigation plans.;; NEPA is an 

"umbrella" statute because other environmental laWS1 policies, executive orders, and guidance are 

considered as part of the review process {Red Arrows- Top}. 

ENVIRONMENTAL PERMITTING [Gold Bar- Middle]; meet the specialized pre-construction 

requirements that apply to the project, each directed at a specific environmental medium or concern 

(i.e., air [Yellow Path}, water [Blue Path}, wildlife habitat [Green Path], cultural and aesthetic resources 

[Pink Path], waste and other aspects [Light Grey Path]. Dozens of federal statutes, and innumerable 

implementing regulations- that are ancillary to NEPA- apply to construction activities. 

DURING CONSTRUCTION: meet environmental commitments, permit terms and conditions, and other 

environmental requirements- e.g.? maintain management plans, inspect1 monitor, report, take corrective 

action, fulfill mitigation mea5ures, manage waste streams, etc. 

OPERATIONS AND MAINTENANCE [Grey Footer]; occupy and operate or transfer property; perform 

required environmental follow-up be aware of long-term legal risk and liability associated with the 

disposal and clean-up of hazardous substances. 

8ACKGROUNDER: AGC's FEDERAl ENVIRONMENTAL REVIEW AND PERMITTING FLOWCHART- JUNE 14, 2017 
180 

Congress needs to address the staggering statutory and regulatory inefficiency that currently exists. The 

average time to complete one EIS, under the NEPA process, is five years and costs $6.6 million (Nat' I Assoc. of 

Environmental Professionals review, 2015). An individual Clean Water Act (CWA) Section 404 permit applicant 

spends 788 days and $271,596 to obtain coverage, on average (Rapanos v. United States, 2006). What is 

more, a six-year delay in starting construction on public projects costs the nation more than $3.7 trillion in 

lost employment/economic gain, inefficiency, and needless pollution (Common Good report, 2015). 

The current practice of performing sequential and often duplicative environmental reviews, following the 

NEPA record of decision, is presenting massive schedule, budget and legal hurdles to project delivery. 

Project proponents are being forced to repeat: analyses and studies; mitigation and management 

planning; as well as interrelated "authorizations" (i.e., certifications, consultations, consistency 

determinations, etc.) - all before they can submit their permit applications and receive the necessary 

approvals to proceed with construction. 

Legal challenges to environmental documentation and permitting procedures are root causes for delays on 

infrastructure projects. 

AGC Recommended Reforms 

Both Congress and the White House have turned to AGC for common-sense recommendations on streamlining 

the federal environmental review and permitting processesm In part, AGC has recommended the following: 

1. The NEPA review and the regulatory permitting processes must be coordinated, and advanced concurrently, 

and not sequentially. There must be timelines and deadlines for completing the environmental approvals 

needed for infrastructure work. 

Specifically, AGC supports a nationwide merger of the NEPA and CWA 404 permitting processes, with the U.S. 

Army Corps of Engineers (Corps) issuing a 404 permit at the end of the NEPA review, based on the information 

generated by NEPA process. Data show these processes take the longest, are the costliest, and are subject to 

the most disagreements (see above). 

2. To reduce duplication, the monitoring, mitigation and other environmental planning work performed during 

the NEPA review must satisfy federal environmental permitting requirements, unless there is a material 

change in the project. 

3. A reasonable and measured approach to citizen suit reform to prevent misuse of environmental laws. 

i Additional details: 

Not all these permits and related "authorizations" (i.e., certifications, consultations, consistency determinations, etc.) are required 

to start work on every project. The scope of the environmental review process will depend on the location/nature of the project. 

AGC's flowchart dlsplays federal requirements only; it does not include the additional state and local requirements that "go 

beyond"' the national baseline to address region-specific needs and concerns. 

U.S. EPA has authorized states to administer some of the fed. programs depicted on this chart (e.g., stormwater permits). 

ii If the federal action may or may not cause a significant Impact the ulead agency" can first prepare a shorter Environmental 

Assessment {EA) to determine whether an E!S is required. If the EA indicates that no significant impact is likely, the agency can release a 

finding of no significant impact (FONSI) and proceed. A limited number of federal actions may avold the EA and EIS requirements under 

NEPA if they meet the criteria for a categorical exclusion (CATEX). 

mIn its May 2017 testimony before Congress, AGC presented reforms included in its comprehensive paper: "Reforms for Improving 

Federal Environmental Review and Permitting/' April 30,2017 Discussion Draft. AGC also testified before Congress in March 2017 on 

how to reduce environmental permitting paperwork. AGC has met and shared its reforms with the U.S. Environmental Protection Agency 

{EPA) and the Army Corps, among others. In addition, the association submitted detailed proposals at the request of the U.S. 

Department of Commerce, which was covered in the Washington Post And, the House Natural Resources Committee sought and 

received AGC's advice on reforming the Endangered Species Act. 

8ACKGROUNDER: AGC's FEDERAL ENVIRONMENTAL REVIEW AND PERMITTING FLOWCHART-JUNE 14, 2017 
181 

Post-Hearing Questions for the Record 

Submitted to Brent Booker 

Secretary-Treasurer 

North America's Building Trades Union 

From Ranking Member Tom Carper 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

1. I understand that the President has proposed more than doubling the Federal Permitting 

Improvement Steering Council's budget from just over $4 million to $10 million. The 

House, meanwhile, has proposed a much smaller budget of $1 million. 

You were involved in building consensus around the reforms that Senators Portman and 

McCaskill were able to get enacted. Do you think the Council can accomplish what we 

intended it to accomplish with its current budget, or the smaller one proposed by the 

House? What do you think it needs to be able to achieve what you and other stakeholders 

hoped it would achieve? 

Senator, we believe the answer to this question, from a budgetary perspective, is that in 

order for the Council tofunction as Congress intended it to fimction, it must be provided 

·with the resources necessary to carry out its mission. As to what specific funding level 

that entails, I do not have an answer to that. What is important is that the Council be 

provided every opportunity to succeed, and should not be needlessly undercut by 

budgetary constraints. If the Council is not appropriately funded to the level necessary 

to carry out its mission, what purpose will it ultimately serve? It should be provided the 

resources that it requires, as determined by the Council and Administration at large, in 

consultation with the Congress. 

2. I understand that President Trump at one point had issued an Executive Order that may 

have duplicated or contradicted the permitting reforms in the law we're discussing 

today. That Order has since been revised to address the concerns many originally had. In 

addition, members of the House and Senate have put forward a number of legislative 

proposals in recent years that attempt some degree of permitting or regulatory 

reform. What advice would you give to us and the Administration as we seek to clarify 

how agency coordination in this area will work? 

Senator, I think it is important to first differentiate between permitting reform and 

regulatory reform. There are many regulations that, quite frankly, ensure the health and 

safety of construction workers across the country while they are on the job site. When 

looking at permitting r~form, we believe that the permitting process can always be 

improved without jeopardizing existing regulations that protect our workers. We believe 

there should be internal clarity as to who, within each individual agency, is the point of 

contact, and who is accountable, for decision making. This would ensure that time lines 

are adhered to and there is a clear chain of command in the decision making process. 
182 

Questions for the Record from Hearing Entitled 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

U.S. Senate Committee on Homeland Security and Governmental Affairs, 

Permanent Subcommittee on Investigations 

Responses from William L. Kovacs 

Senior Vice President 

Environment, Technology, and Regulatory Affairs Division 

U.S. Chamber of Commerce 

September 7, 2017 

Questions from Ranking Member Tom Carper 

1. I understand that the President has proposed more than doubling the Federal Permitting 

Improvement Steering Council's budget from just over $4 million to $10 million. The House, 

meanwhile, has proposed a much smaller budget of$1 million. 

You were involved in building consensus around the reforms that Senators Portman and 

McCaskill were able to get enacted. Do you think the Council can accomplish what we 

intended it to accomplish with its current budget, or the smaller one proposed by the House? 

What do you think it needs to be able to achieve what you and other stakeholders hoped it 

would achieve? 

Answer: The President's FYI8 budget proposed $10 million in appropriations for the Federal 

Permitting Improvement Steering Council ("FPISC"), while the House FYI8 budget included 

only $1 million for FPISC. As FPISC ramps up implementation ofFAST-41, its budget will 

determine how quickly the council is able to scale up operations to the levels planned for in the 

FAST Act. The level of permitting that FAST-41 was designed to accommodate is best reflected 

in the CBO's scoring ofS. 280, the bill that became Title 41 ofthe FAST Act. CBO estimated 

that the funding needed to run FPISC would be determined by the number of projects, and that at 

full implementation FPISC would handle 200 to 300 projects annually and that volume would 

necessitate an operating budget of $30 million. 1 

1 Congressional Budget Office Cost Estimate, S. 280 Federal Permitting Improvement Act of2015 (July 28, 2015). 

Seep. 2 at https:/lwww.cbo.gov/sites/defaultlfiles!ll4th-congrcss-20 15-20 16/costestimate/s280.pdf. 
183 

The FAST-41 legislation included three sources of funding available to the FPISC: l) budget 

appropriations, 2) fund transfers from agencies that are part of the council, and 3) application 

fees collected from project sponsors that apply for participation in FAST -41. At present, 

however, the FPISC is still undertaking a rulemaking to establish application fees, and it will 

likely be at least until FYJ9 before the fee system is established and FPISC begins collecting 

fees. Therefore, at present the FPISC is wholly dependent upon appropriated funds and 

transferred funds as it undertakes the crucial process of implementing and scaling up the FAST4 I permit streamlining structure. For that reason, the Chamber believes that it is crucial that the 

FPISC he funded at the full $10 million level requested in the President's budget. If the FPISC 

is funded at less than that level, it will result in a slower roll out and delay full implementation of 

the FAST-41 program. 

2. I understand that President Trump at one point had issued an Executive Order that may have 

duplicated or contradicted the permitting reforms in the law we're discussing today. That 

Order has since been revised to address the concerns many originally had. In addition, 

members of the House and Senate have put jbrward a number of legislative proposals in 

recent years that attempt some degree of permitting or regulatory reform. What advice 

would you give to us and the Administration as we seek to clarifY how agency coordination in 

this area will work? 

Answer: The Federal Permitting Improvement Steering Council ("FPISC") continues to 

implement FAST-41 while meeting all of the Jaw's mandates with a small budget and staff. The 

FPISC has completed each of the congressional mandates imposed on it such as the 

establishment of the permitting dashboard as well as the release of its guidance document on 

how to carry out responsibilities under the statute and its 13est Practices Manual and Annual 

Report. There are 35 projects on its online dashboard (8 completed) (2 cancelled) (25 in 

progress). The program is working well; it should not be amended until Congress finds problems 

in need of con·ection in the operation of FPISC or how other agencies work with FPISC. 

FAST-41 covers large infrastructure projects over $200 million and can be expanded to cover 

complex projects involving multiple agencies performing environmental reviews. Also, under 

Executive Order 13807 the Council on Environmental Quality can refer all projects deemed 

"major'' under Executive Order 13766 to FPJSC. Therefore, the universe of infrastructure 

projects is covered between FAST-41, MAP-2 J (the Moving Ahead for Progress in the 21st 

Century Act) for surface transportation and WRDA (the Water Resources Development Act) for 

water infrastructure projects. Since all complex projects can be covered under these statutes 

there is simply no need for additional substantive permit streamlining legislation unless Congress 

finds gaps or deficiencies with current statutes. One of the key ways of ensuring that no 

streamlining gaps exist is for Congress to fully fund permit streamlining programs. 

2 
184 

The essential strength of FAST -41 is that Congress came to a bipartisan agreement that achieves 

the goals of both the environmental and business communities by preserving the substantive 

provisions of the National Environmental Policy Act ("NEPA") with the recognition that NEPA 

must operate within time limits so that it is not used as a vehicle for indefinite delay of major and 

complex projects. To achieve this goal, Congress established a very clear governance structure 

for FPISC that provides early consultations on projects, clear procedures for decision making, 

the development of project schedules, coordinating and undertaking concurrent agency reviews, 

mechanisms for stale participation, a dashboard to ensure transparency, and a reduction of the 

statute of limitations for legal challenges to final agency decisions from six years to two. 

FAST -41 also addressed the issue of project opponents raising new issues at the near-end of the 

review process as a delay tactic, by requiring that parties must file comments, which put the 

agency on notice, in order to be eligible to later on raise them as part of any legal challenge. The 

purpose of this provision is that by giving the agency notice of the problem, the agency can have 

an opportunity to address it before the completion of the environmental review. This provision 

coupled with the early consultation allows the agency and the parties to address concerns very 

early in the process and hopefully avoid litigation. 

In summary, in the development ofFi\ST-41, Congress very skillfully wove together the ideas of 

many committees to develop a structure that preserves environmental protections in NEP A with 

a process that allows early public input, agency coordination, notice to agencies of problems, and 

dispute resolution procedures, along with a shorter statute of limitations and requirements that 

courts also review the impact on jobs when issuing injunctions. For these reasons Congress 

should not prematurely alter the substance of FAST-41 other than to remove the statute's sevenyear sunset provision. 

3 
185 

Post-Hearing Questions for the Record 

Submitted to Scott Slesinger 

Legislative Director 

Natural Resources Defense Council 

From Ranking Member Tom Carper 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

I. !understand that the President has proposed more than doubling the Federal Permitting 

Improvement Steering Council's budget from just over $4 million to $10 million. The 

House, meanwhile, has proposed a much smaller budget of $1 million. 

You were involved in building consensus around the reforms that Senators Portman and 

McCaskill were able to get enacted. Do you think the Council can accomplish what we 

intended it to accomplish with its current budget, or the smaller one proposed by the House? 

What do you think it needs to be able to achieve what you and other stakeholders hoped it 

would achieve? 

I am not a federal budget expert. However, it is clear that $1 million isn't enough 

to run the website, let alone carry out the incredible other responsibilities the council has 

to do if we are seriously going to try to improve the permitting and environmental review 

process. The president talks about the need for a trillion dollar infrastructure program; 

trying to expedite approvals with a million dollars is a joke. Congress cannot continue to 

blame delay on the permitting and NEPA processes when it won't fund either the projects 

or the necessary project reviews. 

We would also suspect, that it would be possible, because this council is within 

the White House, for the President to use general White House funds to support the 

mission of the council. Funding now is important so that the council can use the authority 

under FAST-41, to pay for staff to in agencies to conduct their those permitting and 

reviewing functions. 

2. I understand that President Trump at one point had issued an Executive Order that may have 

duplicated or contradicted the permilling reforms in the law we're discussing today. That 

Order has since been revised to address the concerns many originally had. In addition, 

members of the House and Senate have put forward a number oflegislative proposals in 

recent years that attempt some degree of permitting or regulatory reform. What advice 

would you give to us and the Administration as we seek to clarify how agency coordination 

in this area will work? 

Congress has passed changes to the NEPA process in the 2005 Energy Bill, Water 

Resources Bill of2014, SAFE T-LU, T-21, MAP-21, and this committee, in FAST-41. In 

addition, piecemeal changes in disaster legislation as well as California water bills, oil 
186 

and natural gas pipeline bills have sacrificed the public input and poject review process to 

c~xpedite controversial and questionable projects. Members of the Congress has 

introduced over 200 bills over the past few years that also contradict FAST-41 or try to 

create parallel processes that will, unintentionally, confuse project sponsors and further 

delay project approvals as companies and agencies question which law applies. 

We think it is time for Congress to take a time out ofNEOA changes and use its 

oversight authority to evaluate the multiple changes to NEPA approved over the past 

years. If the congress really wants to expedite the process, they will need to fund 

infrastructure not pretend that the problem is project reviews. 
187 

Response to the Question from Senator Carper on Hydropower 

Page 50 of Transcript 

Submitted by Scott Slesinger 

Legislative Director 

Natural Resources Defense Council 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

I. Large scale hydropower projects have had significant adverse effects on our nation's rivers, 

native fish populations, and the fishing jobs and Native American tribes that depend on their 

health. In many cases hydropower projects involve dams that completely block rivers, impeding 

the natural migration pattems of fish and wildlife. Poorly designed projects can entrain and kill 

lish in the hydropower intakes. They can cause or contribute to water quality impairments 

downstream, including higher water temperatures, that result in significant mortality of native fish 

species. Hydropower projects can and have harmed Native American tribes, commercial and 

recreational fishing jobs, and communities that depend on healthy fish populations for sustenance, 

economic development. 

a. http://www.habitat.noaa.gov/pr0tcction/hydro/impacts.html (NMFS webpage 

summarizing impacts to habitat and fish from the more than I ,000 hydropower dams 

licensed by FERC) 

b. hlliJ://www.hydroreform.org/abouthydro/impacts-on-rivers (Hydropower Reform 

Network webpage summarizing hydropower impacts to fish and rivers, with link to 

webpage summarizing improvements to reduce impacts) 

2. Many of the nation's largest hydropower projects were licensed before adoption of the Nation's 

modern environmental laws in middle of the 20'h century, and the relicensing is an opportunity to 

ensure that these adverse impacts on the environment, jobs, and communities are mitigated 

through adoption of revised in stream flow and water quality requirements, installation of fish 

ladders and other infrastructure to ensure safe lish passage, habitat restoration, and other 

infrastructure improvements. 

3. Most of the best sites to build dams and hydropower projects have already been developed, 

particularly in the west. The Energy Depa11ment's 2015 hydropower vision repmi identified the 

potential to significantly increase hydropower production through upgrading technology and 

infrastructure at existing facilities, adding hydropower to non-powered dams, developing pumped 

storage projects, and potentially adding new instream hydropower projects. However, new 

projects made up the smallest fraction of the increase in hydropower production in light of 

environmental considerations. The report notes that new instream hydropower dams "is the most 

costly and environmentally challenging class of hydropower to develop." (ES-18) In contrast, 

new pumped storage hydropower capacity is identified in the report as having the largest potential 

increase in hydropower production. 

a. https://cnergv. gov/s itcs/{'Jrod!ii les/2Ql()/07 /13 3/Hyc[Lopower-Vis ion-Executives_u 111111 ary.J2ill 

4. In conduit hydropower, in contrast, avoids many of these adverse impacts on communities and 

the environment because hydropower is generated by the passage of water in pipelines, canals, 

and other conduits. Congress has recently adopted moditications to the licensing process for 

these projects that may help to spur additional development of these kinds of projects. 
188 

5. Pumped storage projects also have the potential to produce hydropower while reducing or 

avoiding many of the harmful impacts on communities and fisheries from large scale hydropower 

dams, although these projects may face challenges due to siting concerns and loss of habitat, 

water availability, and other factors. 
189 

Post-Hearing Questions for the Record 

Submitted to Janet Pfleeger 

Acting Executive Director 

Federal Permitting Improvement Steering Council 

From Ranking Member Tom Carper 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

I. In May, the EP W Committee heardfrom Leah Pilconis oft he Associated General 

Contractors, that better shared databases on natural resources, and other such tools 

could help improve coordination benveen agencies. Do you agree that this could be 

helpful, and are there other digital tools or technologies that could help agencies review 

projects more quickly and effectively? 

The Permitting Council's Office of the Executive Director (OED) is a strong advocate for 

shared databases for natural and historic resources. Shared databases, and other similar 

technological tools, help agencies review projects effectively by supporting good 

planning and eftkient decision making. Such shared electronic information systems 

provide access across agencies to pertinent data about known natural and historic 

resources. This shared access to information has the potential to prevent redundant 

surveys, better focus attention on areas where more information is needed, and reduce the 

time needed to perform an initial assessment of an area potentially impacted by a 

proposed project 

The Permitting Council OED is working closely with the Permitting Council agencies to 

promote the development and early use of shared databases and other tools to assist 

agencies in identifying potential community, historical, and environmental resources in 

proposed project areas. This will help ensure agencies have access to the best available 

science and information to support fully informed and sound decision-making. The 

Permitting Council OED is accomplishing the promotion of shared databases and other 

tools in the following ways. 

Under Title 41 of the Fixing America's Surface Transportation Act (FAST-41 ), the 

Permitting Council issues recommendations on best practices for environmental reviews 

and authorizations for infrastructure projects in December of each year. One of the 

categories identified in FAST-41 for which the Permitting Council develops these 

recommended best practices is "developing and making available to applicants 

appropriate geographic information systems (GIS) and other tools" that simplify and 

expedite permitting and project planning efforts. 

The Permitting Council OED is working with the agencies to coordinate identification 

and implementation of such best practices to maximize agency effectiveness and provide 

the greatest return on investment Specifically, the Permitting Council is: 
190 

1 l l Determining how agencies are developing and integrating GIS tools and data 

sets (or databases) to benefit or potentially benefit covered projects through 

timely and efficient decision-making processes; 

(2) Identifying tools agencies are utilizing that have been developed by other 

agencies, including which are used most frequently and have been deemed the 

most helpful to agencies during the environmental reviews and authorizations 

of proposed projects; 

1 >) Identifying what stage during the proposed project review process agencies 

are using these tools (i.e., early coordination, pre-application, National 

Environmental Policy Act (NEPA) documentation, and/or individual 

authorizations); and 

l··l l Identifying needs that could be addressed with an electronic information 

system that are currently unmet. 

The Permitting Council OED monitors best practices implementation within and among 

individual agencies through: (i) OED review of Coordinated Project Plan (CPP) quarterly 

updates to ensure agency use of best practices for project specific environmental reviews 

and authorizations and (ii) the FAST-41 Annual Report to Congress due in April each 

year, in which the Executive Director assesses agency performance in making 

improvements consistent with best practices. 

2. One goal oft he rejiJrms we're discussing today is to encourage agencies to review 

projects they have a role in vetting concurrently to the maximum extent possible so that 

necessary reviews take less time. What progress has the Council made since it began its 

work in achieving this goal? What obstacles might prevent agencies from coordinating 

their work so that reviews can be done at the same time rather than back to back? 

Concurrent rather than sequential reviews have been identified and promoted as a best 

practice during previous permitting process improvement efTorts. As identified in the 

2015 Synchronizing Environmental Reviews for Transportation and Other Infrastructure 

Projects Handbook (the Red Book), developed by the U.S. Army Corps of Engineers 

(USACE), the Federal Highway Administration (FHWA), the U.S. Environmental 

Protection Agency (EPA), the U.S. Fish and Wildlife Service (USFWS), the National 

Oceanic and Atmospheric Administration (NOAA), the U.S. Coast Guard (USCG), and 

the Federal Railroad Administration (FRA), concurrent reviews such as concurrent 

NEP A compliance and Section 404 (Clean Water Act) were identified as a tool to 

improve project reviews. The Red Book, along with other tools and techniques, 

encourages increased use of synchronization and other tools to reduce permitting 

timelincs and impacts to the environment. 

Concurrent rather than sequential reviews arc also strongly encouraged in the Permitting 

Council's January 2017 Recommended Best Practices for Environmental Reviews and 

Authorizationsfor Infrastructure Projects, available at 

https://ww-.v.permits.performance.gov/tools. 

Federal agencies should synchronize activities related to environmental 

reviews and authorizations, conducting them concurrently rather than 
191 

sequentially, unless an agency would be precluded from meeting statutory 

obligations in doing so. Synchronization of multi-agency reviews can reduce 

the time required for the Federal government to complete its permitting and 

reviews. 

• The Council on Environmental Quality (CEQ) NEPA Implementing 

Regulations state that "Federal agencies shall, to the fullest extent possible, 

integrate the requirements ofNEPA with other planning and environmental 

review procedures required by law or by agency practice so that all such 

procedures run concurrently rather than consecutively." 

• For projects covered under FAST-41, Federal agencies must integrate their 

environmental review and authorization activities, carrying out their 

obligations concurrently and in conjunction with other agency activities to the 

maximum extent practicable. 

Through the tools provided to the Permitting Council by FAST-41, progress in 

implementation of concurrent reviews for covered projects can begin to be measured. The 

F AST-4 1 Coordinated Project Plan (CPP) serves as the foundation for interagency 

coordination, early identification of difflculties and issues that could delay Federal 

decision-making, and verification of implementation of best practices, including 

concurrent rather than sequential reviews. The CPP includes the project's permitting 

timetable (which is the timetable posted publicly on the Permitting Dashboard at 

https://www.permits.performance.gov/), which allows for analysis of progress made in 

incorporation of concurrent reviews across covered projects. Analysis of permitting 

timetable data will also help the Permitting Council identify obstacles to successfully 

using concurrent reviews. 

As new FAST-41 projects are added to the Dashboard, the Permitting Council's Office of 

the Executive Director (OED) works with lead and cooperating/participating agencies to 

review initial CPPs, as well as quarterly updates to those CPPs, to ensure agencies 

develop the most efficient schedules for their environmental reviews and authorizations. 

The Lead Agency is responsible for synchronization and coordination of the timetable for 

all environmental reviews and authorizations. Through working with the agencies on 

individual projects as they develop the CPPs and permitting timetables, some 

considerations have already been identified that affect how various permitting processes 

can be aligned. For example, some agencies require a more developed project design to 

meet their informational requirements than the Lead Agency may need to move forward 

with a Draft Environmental Impact Statement (DEIS). Requiring the DEIS to include that 

higher level of design detail could have implications for the overall timelinc or for 

investor considerations when additional funding may be required to develop those more 

detailed engineering designs. 

As the Permitting Council continues to identify potential obstacles to concurrent reviews, 

that information is being shared with the Office of Management and Budget and the CEQ 

to help inform and develop the framework to implement One Federal Decision (OFD) as 

required under Executive Order (EO) 13807 on infrastructure-related permitting. Apart 

from some exceptions specified in the EO, major infrastructure projects processed with 
192 

OFD shall result in one Record of Decision for the lead, cooperating and participating 

Federal agencies and decisions on all the necessary authorizations within 90 days 

thereafter. 

3. Earlier this year, the Inspector General at the US. Department ()[Transportation 

reported that DOT had implemented just over hal/'()/' its planned actionsfrom MAP-2lto 

accelerate projects, and that the FAST Act changes delayed the benefits of some alreadyimplemented actions. Would you agree that legislative uncertainty and implementation 

delays can hinder our ability to achieve intended benefits, such as accelerating project 

delivery and reducing project costs? 

While the Department of Transportation can specifically address the status ofMAP2land FAST Act project delivery provisions, I understand substantial progress has been 

made. The Permitting Council created by Title 41 ofthe FAST Act (FAST-41) has 

worked since its inception to improve Federal environmental reviews and authorizations 

by providing enhanced predictability, transparency and accountability through 

implementation of best practices and by using FAST-41 tools such as the CPPs described 

above. The permitting timetable developed in every project's CPP is made public on the 

Permitting Dashboard. The Permitting Dashboard serves as a single point of reference for 

information on covered infrastructure projects, providing predictability to project 

sponsors and a one stop shop where the public and interested stakeholders can view the 

timetable and status for all environmental reviews and authorizations required for any 

covered project. 

A fully implemented FAST-41 program will include the following benefits and services 

to FAST-41 covered projects: 

Developing guidance to agencies on implementing FAST-41 to achieve 

predictable and accountable project permitting schedules; 

• Assuring implementation and institutionalization of best practices for 

environmental reviews and authorizations; 

• Ensuring coordinated project plans fully implement best practices, including 

concurrent rather than sequential reviews, that will result in a streamlined 

permitting process for every covered project; 

Using the public-facing Permitting Dashboard to track the status and enhance 

transparency to the Federal permitting process for covered projects and to analyze 

the effectiveness of implemented best practices and evaluate changes in overall 

permitting process timelines; 

• Developing recommended performance schedules, based on two years of data, to 

include intermediate and final completion dates for environmental reviews and 

authorizations; 

• Providing extensive interagency coordination to identify and resolve issues early 

in the process to enhance the predictability and transparency of the federal 

permitting process; and 
193 

• Facilitating the development, maintenance, and adherence to project timetables 

using the tools provided in FAST -41, including the formal dispute resolution 

process. 

As reported at the Permitting Council's September 2017 Council member meeting, 

F AST-41 coordination efforts already are showing positive results in terms of time and 

cost savings, including collaboration on a stalled Section I 06 review under the National 

Historic Preservation Act whose completion allowed subsequent authorizations to move 

forward and, as relayed by the Project Sponsor, saved an estimated 6 months and $300 

million in capital costs to the project. 

4. Our witness on the first panel from the Natural Resources Defense Council argued that 

infrastructure projects are often held up not because of federal environmental reviews, 

but because of lack of jimding or state and local laws and zoning requirements. When it 

comes to the latter, I understand that state and local governments are permitted but not 

required to participate in the Federal Permitting Improvement Steering Council's 

work. It seems to me that there would be some value in having state and local 

governments participating as much as possible given the role they play in getting a 

project off the ground. What are your thoughts on state and local participation when it 

comes to coordinating permitting and other reviews and how we the Council can 

encourage it? 

F AST-41 provides a state with the opportunity to participate in the environmental review 

and authorization process under FAST-41 if the Federal environmental review is being 

implemented within the boundaries of that state. 

If the state chooses to participate then it can subject all state agencies to the FAST-41 

process that I) have jurisdiction over the covered project, 2) are required to conduct or 

issue a review, analysis, opinion, or statement for the covered project, or 3) are required 

to make a determination on issuing a permit, license, or other approval or decision for the 

covered project. 

State, local, and tribal government "participating agencies" under FAST -41 can help 

ensure that specialized, expert knowledge about the local community and its resources is 

accurately represented in the development of Coordinated Project Plans. If a 

coordination plan is created between the facilitating or lead agency, as applicable, and 

any state, local, or tribal agency, the plan shall, to the maximum extent possible be 

included in a Memorandum of Understanding (MOU) among the federal and state, local, 

or tribal agencies as cooperating agencies. An MOU should describe the reason for 

cooperating agency status, identify the specific portions of the covered project and 

associated timetable that affect the cooperating state, local, or tribal agency, and make the 

agency subject to all requirements ofFAST-41 pursuant to 42 U.S.C. § 4370m2( c )(3 )(D). 

The Permitting Council OED has conducted outreach to various state, local, and tribal 

entities to encourage their early involvement and/or cooperating agency status for FAST-
194 

41 projects, including through meetings and conferences, such as the Environmental 

Council of the States State Environmental Protection Meeting (July 17, 2017), National 

Association of Counties Annual Conference (July 2017), and National Tribal 

Preservation Conference (August 20 17). During the outreach activities, the Permitting 

Council OED and Permitting Council agencies presented the provisions ofFAST-41 and 

how local concerns and permitting informational needs could be represented early in the 

Federal permitting process through FAST-41 participation, thus improving the state, 

local, and tribal consultation and individual review processes. One state has currently 

opted into the FAST-41 process for a covered project and a second state has expressed 

interest in opting into the F AST-41 process for another covered project. 

5. One of the main responsibilities given to the Federal Permitting Improvement Steering 

Council is to maintain the Permitting Dashboard that shows schedules and other 

information for agencies' consideration of major projects. What benefits can this 

transparency bring, and what steps can be taken to improve the Dashboard and the 

quality of information published on it? 

Transparency provides the following benefits to covered projects under FAST-41: 

The Permitting Dashboard serves as a single point of reference for all FAST -41 covered 

projects, providing all stakeholders (e.g., project sponsors, Federal agencies, Congress 

and the public) with a one-stop information source for these projects. Stakeholders can 

see the status of the covered projects with the use of visual tools as well as the detailed 

written schedules for completed and upcoming environmental reviews and authorizations. 

Providing this information on a public-facing website helps bring transparency, visibility, 

and accountability to the review process, helping ensure adherence to the timeline 

established and presented on the Permitting Dashboard. This centralized source for 

complete and accurate data provides detailed information on each step of the permitting 

process across agencies, allowing the Permitting Council to identify and resolve 

challenges faced by agencies as the permitting process progresses. The Permitting 

Dashboard also highlights and brings to the forefront potential data trends in permitting 

process time lines, allowing the Permitting Council to identify recurring issues and 

proactively prevent them in the future. 

The following steps are being taken to improve the Dashboard and the quality of 

information published on it: 

Since the beginning ofFY 2017, the Permitting Council OED has worked with the lead 

and cooperating agencies to improve the data accuracy and completeness of permitting 

timetables to the Dashboard in the following ways: 

1. The OED provided quarterly assessments throughout this calendar year (20 17) to 

all agencies to help them address identified data gaps. 

2. OED continues to improve the Pennitting Dashboard, with technical support from 

the Department of Transportation, through enhancements such as automated 

notifications to agencies when authorization deadlines are approaching. 

3. Development of new dynamic reporting and visualization enhancements for the 

Dashboard, planned for FY2018, will better allow the public to see how federal 
195 

agencies are performing in critical areas. Project sponsors and the public will be 

better able to track the progress of projects and will be provided with explanations 

for any delays, as appropriate. 

The Pennitting Dashboard does not currently include dates for PERC and NRC issued 

certificates and permits required for nuclear plants, hydropower facilities, and interstate 

gas pipelines (e.g, according to 18 C.P.R.§ 3c.2(b), "The nature and time of any 

proposed action by the Commission are confidential and shall not be divulged to anyone 

outside of the Commission."). Several other agency environmental reviews and 

authorization completion dates are contingent upon those NRC and PERC dates, making 

it difficult for those agencies to accurately set target completion dates and for PAST -41 to 

fully meet its intended objectives. 

6. This hearing hasfocused on the risks and uncertainties for projects prior to being built, 

which is important. However there can also be risks to infrastructure once it is built, 

particularly in low-lying areas that may see impacts from sea level rise. How do you 

believe that public agencies and project sponsors should be integrating climate change 

projections and sea level rise into project reviews? 

Your question raises a methodological issue for the environmental review or 

authorization of infrastructure projects. PAST-41 directs lead agencies to determine, in 

collaboration with each PAST-41 cooperating agency, the methodologies to be used and 

level of detail required in the analysis of each alternative for a covered project. PAST-41 

cooperating agencies must use these methodologies when conducting any required NEPA 

review for that particular covered project, to the extent consistent with existing law. Lead 

agencies should also take into account the requirements in the CEQ NEPA regulations 

regarding methodologies and scientific accuracy ( 40 C.P.R. § 1502.24 ), their own agency 

NEP A procedures, and those of cooperating agencies, which may contain additional 

requirements for methodologies associated with the environmental review. They should 

also take into account case law and best practices bearing on the particular methodology 

(for example, the need to be transparent about assumptions in models; providing 

explanations of the methodology that are clear and written in plain language so that 

decision-makers and the public can readily understand it). 
196 

Post-Hearing Questions for the Record 

Submitted to Janet Pfleeger 

Acting Executive Director 

Federal Permitting Improvement Steering Council 

From Sen. Steve Daines 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

Ms. Pjleeger, thank you for testifying I am engineer by trade. I am not a career politician. 

rather an engineer who spent 28 years in the private sector identifying and fixing inefficiencies. 

As we work towards President Trumps' goal of a one trillion dollar infi'astructure paclwge, a 

surefire way to make the American taxpayers dollars go fizrther is to eliminate redundancies and 

streamline the Federal permitting process. 

A1s. Pfleeger, I understand a number of agencies and private companies have been developing 

technologies, such as Geographic Information Systems (GIS) maps, to locate natural resources 

such as wetlands and endangered species. This technology is used to determine infrastructure 

impacts and appropriate mitigations. However, Federal agencies still require time-intensive and 

costly field studies to verify the data. What is the Permitting Center doing to encourage 

agencies to move toward technology-based verses labor intensive reviews? 

The Permitting Council's Office of the Executive Director (OED) is a strong advocate for 

technology-based versus labor intensive reviews to ensure a timely and efficient permitting 

process. Shared databases, and other such technological tools, help agencies review projects 

effectively by supporting good planning and efficient decision making. Such shared electronic 

information systems provide access across agencies to pertinent data about known natural and 

historic resources. This shared access to information has the potential to eliminate redundant 

surveys. focus attention on areas where more information is needed, and reduce the time needed 

to perform an initial assessment of an area potentially impacted by a proposed project 

The Permitting Council OED is working closely with the Permitting Council agencies to 

promote the development and early use of shared databases and other tools to assist agencies in 

identifying potential community, historical, environmental resources in proposed project areas. 

This will help ensure agencies have access to the best available science and information can 

support fully informed and sound decision-making. The Permitting Council OED is 

accomplishing the promotion of shared databases and other tools in the following ways. 

Under Title 41 of the Fixing America's Surface Transportation Act (FAST-41 ), the Permitting 

Council issues recommendations on best practices for environmental reviews and authorizations 

for infrastructure projects in December of each year. One of the categories identified in FAST -41 

for which the Permitting Council develops these recommended best practices is "developing and 

making available to applicants appropriate geographic information systems and other tools" that 

simplify and expedite permitting and project planning efforts. 
197 

The Permitting Council OED is working with the agencies to coordinate identification and 

implementation of such best practices to maximize their effectiveness and provide the greatest 

return on investment. Specifically, the Permitting Council is: 

(I) Determining how agencies are developing and integrating GIS tools and data sets (or 

databases) to benefit or potentially benefit FAST-41 projects through timely and 

efficient decision-making processes; 

(2) Identifying tools agencies are utilizing that have been developed by other agencies, 

including which are used most frequently and have been deemed the most helpful to 

agencies during the environmental reviews and authorizations of proposed projects; 

(3) Identifying what stage during the proposed project review process agencies are using 

these tools (i.e., early coordination, pre-application, National Environmental Policy 

Act (NEPA) documentation, and/or individual authorizations); and 

1·1) Identifying needs that could be addressed with an electronic information system that 

arc currently unmet. 

The Permitting Council OED monitors best practices implementation within and among 

individual agencies through: (i) OED review of Coordinated Project Plan (CPP) quarterly 

updates to ensure agency usc of best practices for project specific environmental reviews and 

authorizations and (ii) the FAST-41 Annual Report to Congress due in April each year, in which 

the Executive Director assesses agency performance in making improvements consistent with 

best practices. 

Ms. Pjleeger, I was pleased that in your testimony you mentioned outreach to stakeholders is a 

priority, particularly with Tribal entities. As you know. Montana is home to several large 

reservations with critical infi·astructure needs. What input and guidance have you received 

from these groups that will make the implementation of FAST-41 more successful and how 

will you work to incorporate these recommendations? 

The Permitting Council Office of the Executive Director (OED) is committed to meaningful 

government-to- government consultation with federally recognized Tribal Nations. We recognize 

that formal and substantive consultation with Indian Tribes is a vital aspect ofNEPA and other 

federal permitting. The FAST-41 Dashboard tool not only emphasizes the importance of these 

consultations in the various federal permitting processes, but helps assure potential impacts to 

tribal resources and sacred sites are avoided, minimized, and mitigated. The FAST-41 program 

provides enhanced transparency to assure that appropriate and meaningful consultation occurs. 

Early engagement to substantively address Tribal concerns and obtain Tribal consent is not only 

consistent with United States trust and treaty responsibilities, it also improves outcomes for 

project sponsors by preventing subsequent delays in permitting and project development 

resulting from objections and lawsuits. 

The Permitting Council OED meets with Tribal representatives and has reviewed the findings 

and recommendations in the Improving Tribal Consultation and Tribal Involvement in Federal 

Injrastructure Decisions report released by the Department of the Interior, the U.S. Department 

of the Army, and the Department of Justice in 2017 available at 
198 

https:/ /\\ ww. bia.gov/ sitcs/bia. gov /tiles/assets/as-ialpdt/idc2-06003 O.pdf and the Improving 

Tribal Consultation in Infrastructure Projects report released by the Advisory Council on 

Historic Preservation in 2017 available at http://www.achp.gov/docs/achp-infrastructurereport.pdf. Consistent with these reports' recommendations and Key Principles, FPISC-OED has 

provided Permitting Council agencies detailed metric information and advised them they will be 

evaluated on how they "ensure that Tribal consultations are conducted in a way that fully 

respects the government-to- government relationship." Agency performance will be assessed in 

April2018 via the Permitting Council's Annual Report to Congress. 
199 

Post-Hearing Questions for the Record 

Submitted to Terry Turpin 

Director, Energy Projects 

Federal Energy Regulatory Commission 

From Ranking Member Tom Carper 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and 

the Federal Permitting Improvement Steering Council" 

September 7, 2017 

l. In May, the EPW Committee heard from Leah Pilconis of the Associated General 

Contractors, that better shared databases on natural resources, and other such tools could 

help improve coordination between agencies. Do you agree that this could be helpful, and 

are there other digital tools or technologies that could help agencies review projects more 

quickly and effectively? 

Response: FERC staff currently use databases maintained by other agencies to assist in our 

analysis of proposed projects. For example, we use databases maintained by the 

Department of Interior and the US. Geological Survey to assess project impacts 

on endangered species and instreamjlows at hydropower projects. For natural 

gas projects, staff was recently trained on the Environmental Protection Agency's 

"NEPAssist" and "EJSCREEN" web-based tools thai draw data from GIS 

databases and public web services to screen for environmental and demographic 

indicators. Staff also utilize the U.S. Fish and Wildlife Service's web-based 

Information Planning and Conservation System to identifY endangered species 

that may be affected in project areas. While these technologies are usefidfor 

conducting preliminary assessments and focusing analysis where it is most 

needed, site-specific data collection is typically needed to assess project-specific 

effects. In most cases, applicants generate new, discreet digital data tailored to 

each project to provide the data necessary for the environmental analysis 

required under the National Environmental Policy Act. 

2. One goal of the reforms we're discussing today is to encourage agencies to review 

projects they have a role in vetting concurrently to the maximum extent possible so that 

necessary reviews take less time. What progress has the Council made since it began its 

work in achieving this goal? What obstacles might prevent agencies from coordinating 

their work so that reviews can be done at the same time rather than back to back? 

Response: There are two primary reasons that agencies have difficulty in conducting 

concurrent reviews: a lack of information/project application; and dependent 

review processes. Depending on their authorizing statute(s) and legal precedents, 

agencies have differing specific needs for their own reviews. In many cases, 

information needed by one agency cannot be developed until later in the review 

process of another agency As a result, project sponsors often do not submit 

permit applications and supporting information to all agencies at the same time. 

In addition, some permitting work cannot be accomplished until another agency 
200 

action is completed. For example, many federal agencies have indicated that 

their permits cannot be issued until National Historic Preservation Act Section 

106 or Endangered Species Act Section 7 consultation by the Commission is 

complete. Often, the review underlying these permits requires property access 

that can only be achieved after Commission approval of a project. These 

dependencies are being identified and documented as project schedules and are 

disclosed on the Federal infrastructure Project Permitting Dashboard, which will 

enable all agencies to look for efficiencies. 

3. Earlier this year, the Inspector General at the U.S. Department of Transportation reported 

that DOT had implemented just over half of its planned actions from MAP-21 to 

accelerate projects, and that the FAST Act changes delayed the bene !Its of some alreadyimplemented actions. Would you agree that legislative uncertainty and implementation 

delays can hinder our ability to achieve intended benetlts, such as accelerating project 

delivery and reducing project costs? 

Response: In my experience, legislative uncertainty and delays in implementation ofprocess 

revisions can be impediments to increasing the efficiency <Jf'project review. 

However, the eventual benefits from legislative changes can lead to positive 

outcomes. 

4. Our witness on the first panel from the Natural Resources Defense Council argued that 

infrastructure projects are often held up not because of federal environmental reviews, 

but because of lack of funding or state and local laws and zoning requirements. When it 

comes to the latter, I understand that state and local governments are permitted but not 

required to participate in the Federal Permitting Improvement Steering Council's 

work. It seems to me that there would be some value in having state and local 

governments participating as much as possible given the role they play in getting a 

project otT the ground. What are your thoughts on state and local participation when it 

comes to coordinating permitting and other reviews and how we the Council can 

encourage it? 

Re!>ponse: The Commission's Pre~filing Process is designed to engage state and local 

agencies to identify and allow for resolution of issues prior to thejiling ofan 

application. This process has allowed state agencies to make beneficial use of' the 

Commission's public outreach ejjiJrts, and coordinate with federal agencies and 

the project sponsor. Based on Commission stajj.'s experience, many state 

agencies are willing to participate during the Pre~ling Process. Many state 

agencies also.find that their information needs or review processes hinder their 

ability to participate in concurrent review of' a project proposal once an 

application has been filed at the Commission. 

5. One of the main responsibilities given to the Federal Permitting Improvement Steering 

Council is to maintain the Permitting Dashboard that shows schedules and other 

information for agencies' consideration of major projects. What benefits can this 
201 

transparency bring, and what steps can be taken to improve the Dashboard and the quality 

of information published on it? 

Response: The Permitting Dashboard provides all agencies, the public, and the project 

proponent with an easily accessible snapshot view of all federal permits needed to 

process the application. Previously, this has only been available by monitoring 

project specific filings, which can be quite voluminous. However, many linear 

infrastructure projects involve multiple districts or field offices from a particular 

agency. The complexity of this information is not yet easily displayed on the 

Dashboard. In addition, some projects involve unique permits which currently 

cannot be displayed or tracked on the Dashboard. 

6. This hearing has focused on the risks and uncertainties for projects prior to being built, 

which is important. However there can also be risks to infrastructure once it is built, 

particularly in low-lying areas that may see impacts from sea level rise. How do you 

believe that public agencies and project sponsors should be integrating climate change 

projections and sea level rise into project reviews? 

Response: For hydropower projects, staff use a 30- to 60-year publicly-available water flow 

record when assessing project effects. This .flow record reflects actual (not 

predicted or modeled) changes in hydrology that have or are occurring within the 

river basin within which the project is located. This flow record, by its nature, 

reflects anyfluctuations related to climate change. If a significant issue arises 

that was not anticipated c!fier the project is in operation, hydropo·wer licenses 

include standard reopener articles such that changes in project operation or 

project facilities can be considered. Regarding sea level rise, most Commission 

jurisdictional hydropower projects are located far-enough upstream in a 

watershed that sea level rises would not be expected to impact facility or 

operation. For natural gas pipelines, sea level rise is not expected to significantly 

affect siting or operations given that these facilities are buried underground. 

Pipeline operators periodically inspect warerbody crossings during operation for 

signs of erosion and to perform remediation, as necessmy. For aboveground 

facilities, such as liquefied natural gas terminals, staff reviews designs and 

,lrequently requests additional information from the applicant to ensure that sea 

level rise and storm surge is considered in the proposed project design. 
202 

Post-Hearing Questions for the Record 

Submitted to Terry Turpin 

Director, Energy Projects 

Federal Energy Regulatory Commission 

From Senator Steve Daines 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

Mr. Turpin, thank you for testifying. I am engineer by trade. I am not a career politician, rather 

an engineer who spent 28 years in the private sector identifying and fixing inefficiencies. 

As we work towards President Trumps' goal of a one trillion dollar infrastructure package, a 

surefire way to make the American taxpayers dollars go farther is to eliminate redundancies and 

streamline the Federal permitting process. 

In Montana, hydropower accounts for the second-largest share of electricity production and 

Montana is the fifth-largest producer of hydropower in the nation. The growth of regulations 

such as the Clean Water Rule has further complicated an already onerous permitting process. I 

am happy to see that the Administration is preparing to rescind the Clean Water Rule. 

Mr. Turpin, in your testimony you mentioned the critical role the Federal Energy Regulatory 

Commission (FERC) plays in regulating hydropower in the U.S. To the extent that the Clean 

Water Rule has hampered permitting of hydropower projects, how will you act quickly to 

revive stalled projects and streamline the permitting process to get these projects back on 

track? 

Reo;Jonse: I am not aware of any case where the Clean Water Rule has hampered the 

Commission's ability to issue a timely decision on a hydropower license 

application. However, under section 401 (a)(J) of the Clean Water Act (CWA), the 

Commission may not issue a license authorizing the construction or operation of a 

hydroelectric project unless the state water quality certifying agency either has 

issued water quality certification (certification) for the project or has waived 

certification byfai/ing to act on a requestfor certijication within a reasonable 

period of time, not to exceed I year. Section 401 (d) of the CWA provides that the 

certification must become a condition of any federal license for the projecr. Of the 

82 applications currently pending for hydropower projects, 20 are delayed, at least 

in part, because the Commission has not yet received water quality certification 

fi'om the state. 
203 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

Assistant for Water Resources Policy 

U.S. Army Corps of Engineers 

From Chairman Rob Portman 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

1. Please provide policies regarding and examples of how your headquarters are 

communicating the FAST -41 requirements to your field offices. 

Answer: The U.S. Army Corps of Engineers (Corps) continues to develop implementation 

procedures communicating FAST 41 requirements between Corps headquarters and its district 

offices. For example, Corps Headquarters has developed a list ofFAST-41 points of contact 

(POC) within each District Regulatory office and two F AST-41 POCs within the headquarters 

Regulatory Division. The Headquarters POCs have held several trainings with the field staff, 

regularly provide guidance updates to the field and coordinate on each project to ensure 

project-specific compliance every quarter. In addition, they are always available to answer any 

questions and regularly do so through an established line of communication through the 

Regulatory vertical team. 

Similarly, for the Corps Section 408 authority (33 U.S.C. Section 408) staff leads have been 

identified at both the Headquarters and each Corps district. Monthly calls are held with the 

Section 408 coordinators, and discussions are held on how FAST-41 requirements intersect with 

the Section 408 processes, as well as sharing lessons learned and best practices to date. 

Overall, as projects are added to the Permitting Dashboard, Corps leads engage with district 

personnel to support development of Coordinated Project Plans and data entry into the 

dashboard. 
204 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

Assistant for Water Resources Policy 

U.S. Army Corps of Engineers 

From Ranking Member Tom Carper 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

1. In May, the EPW Committee heard from Leah Pilconis of the Associated General 

Contractors, that better shared databases on natural resources, and other such tools could 

help improve coordination between agencies. Do you agree that this could be helpful, and 

are there other digital tools or technologies that could help agencies review projects more 

quickly and effectively 

Answer: Shared databases arc generally helpful. In fact, the U.S. Army Corps of Engineers 

(Corps) already utilizes many of the digital tools developed by other agencies and vice versa, 

such as U.S. Fish and Wildlife Service and National Marine Fisheries Service data layers for 

determining the presence of species and/or critical habitat protected under the Endangered 

Species Act when evaluating applications for proposed activities. Improved awareness among 

agencies of the data layers each utilizes when reviewing proposed activities can produce 

additional efficiencies. There are many natural resource databases that are publically available, 

such as the U.S. Fish and Wildlife Service's National Wetlands Inventory Mapper. In this 

regard, the Corps fully supports one ofFPISC's proposed Fiscal Year 2018 best practices for 

infrastructure projects that involves providing stakeholders with a list of GIS information sources 

that are publically available and used by Federal agencies to initially assess the potential for 

environmental resources in a project area. It is important to note that challenges, such as 

differing technological requirements, firewall's and data scales often unintentionally limit the 

full benefit of shared information. 

2. One goal of the reforms we're discussing today is to encourage agencies to review 

projects they have a role in vetting concurrently to the maximum extent possible so that 

necessary reviews take less time. What progress has the Council made since it began its 

work in achieving this goal? What obstacles might prevent agencies from coordinating 

their work so that reviews can be done at the same time rather than back to back? 

Answer: For many years, agencies, including the Corps, have been undertaking concurrent 

reviews to the extent practicable in an effort to streamline decision-making. The Council has 

provided the Corps with an additional forum to undertake such synchronized coordination and to 

track that coordination nationally. Obstacles that can prevent full coordination are often due to 

project sponsors decisions to not apply for each agency's respective authorizations at the same 

time, so an agency may not fully understand what it must evaluate until late in another agency's 

process. Another obstacle can be when an agency's decision is already abbreviated, so extensive 

coordination would not only be unnecessary, but also counterproductive, adding time and 

resources to an already streamlined process. Lack of funding for the project at the time of 
205 

project planning and NEPA development can also be a challenge; for instance the lead agency 

may coordinate its NEP A document with the cooperating agency, but the applicant and/or lead 

agency may not have adequate funding to conduct the level of project design or the studies 

needed to facilitate the cooperating agency's process. The result is often that a cooperating 

agency's review is pushed until after the NEPA process has concluded and additional funding is 

not available. At times the lack of desire on the lead agency's part to include the cooperating 

agency's statutory requirements in its NEPA review is a roadblock to concurrent reviews. 

Including information to meet a cooperating agency's statutory requirements that are viewed as 

extraneous to the lead agency's NEP A requirements may increase the time, cost, and effort 

needed to prepare the NEP A document due to the additional coordination and information or 

studies that may be required. As such, a lead agency may be hesitant to include the information 

a cooperating agency needs for their environmental decision-making role in the lead agency's 

NEPA document, often resulting in the creation of a supplemental NEPA document by the 

cooperating agency. Finally, limited staff resources is routinely a challenge as synchronized 

reviews are time and resource-intensive due to the level of coordination required amongst 

agencies. 

3. Earlier this year, the Inspector General at the U.S. Department of Transportation reported 

that DOT had implemented just over half of its planned actions from MAP-21 to 

accelerate projects, and that the FAST Act changes delayed the benefits of some alreadyimplemented actions. Would you agree that legislative uncertainty and implementation 

delays can hinder our ability to achieve intended benefits, such as accelerating project 

delivery and reducing project costs? 

Answer: Implementation delays can hinder the ability to achieve intended benefits. Delays are 

generally a consequence of multiple agencies coordinating the implementation of the same 

statute while also reconciling that statute with their own governing statutes, regulations, and 

policies, and creating new regulations and policies to implement the changes in the statute. It 

takes time to resolve inconsistencies as they emerge. 

4. Our witness on the first panel from the Natural Resources Defense Council argued that 

infrastructure projects are often held up not because of federal environmental reviews, 

but because of lack of funding or state and local laws and zoning requirements. When it 

comes to the latter, I understand that state and local governments are permitted but not 

required to participate in the Federal Permitting Improvement Steering Council's 

work. It seems to me that there would be some value in having state and local 

governments participating as much as possible given the role they play in getting a 

project off the ground. What are your thoughts on state and local participation when it 

comes to coordinating permitting and other reviews and how we the Council can 

encourage it? 

Answer: Engaging state and local governments to participate in the FAST-41 process, especially 

in cases where they are responsible for administering federal laws, e.g. Sections 40 I and 402 of 

the Clean Water Act, Coastal Zone Management Act, and Section I 06 of the National Historic 

Preservation Act, would likely be very beneticial to the overall process. The Corps does not have 

recommendations regarding how the Council could encourage state and local government 
206 

engagement beyond inviting such agencies to participate early in the coordination process and 

we recognize that it may require substantive effort to build others into the evolving process. 

5. One of the main responsibilities given to the Federal Permitting Improvement Steering 

Council is to maintain the Permitting Dashboard that shows schedules and other 

information for agencies' consideration of major projects. What benefits can this 

transparency bring, and what steps can be taken to improve the Dashboard and the quality 

of information published on it? 

Answer: The Permitting Dashboard provides national attention to projects that would otherwise 

only receive regional attention and provides transparency to a larger set of agencies and 

stakeholders. This enhanced transparency can improve, among other things, communication, 

coordination, and resolution of issues. With regards to suggested improvements to the 

Dashboard, the following is offered: 

I) Abbreviated Review Reporting: Agencies only report milestones for those decisions that are 

not already abbreviated as the Permitting Dashboard reporting process requires considerable time 

and effort, and diverting limited time/resources from conducting reviews which is 

counterproductive. Instead, the Corps proposes that each agency simply list the abbreviated 

review required, the target end date, and any dependent actions by other agencies; 2) Take 

Advantage of Existing Databases. The Permitting Dashboard needs to be able communicate with 

agencies' existing databases where much information is already tracked in order to prevent 

duplication of data entry as well as the potential for errors; and 3) Other Improvements: The 

Corps is already working with the Oftice of the Executive Director on some other changes that 

would improve clarity/quality of information on the Permitting Dashboard, such as allowing us 

to list which districts are conducting the reviews and consolidating our agency's Section 10 and 

Section 404 actions into a single action to reduce data duplication. 

6. This hearing has focused on the risks and uncertainties for projects prior to being built, 

which is important. However there can also be risks to infrastructure once it is built, 

particularly in low-lying areas that may see impacts from sea level rise. How do you 

believe that public agencies and project sponsors should be integrating climate change 

projections and sea level rise into project reviews? 

Answer: As a rule of thumb, reviews of impacts from climate change must be consistent with an 

agency's authorities as well as guidance from the Administration. As an example, the Corps 

Regulatory Program authority is often a small component of a larger project and is limited to 

impacts to aquatic resources regulated pursuant to its authorities. 
207 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

Assistant for Water Resources Policy 

U.S. Army Corps of Engineers 

From Senator Steve Daines 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

Ms. Colosimo, thank you for testifying. l am engineer by trade. 1 am not a career politician, 

rather an engineer who spent 28 years in the private sector identifying and fixing inefficiencies. 

As we work towards President Trumps' goal of a one trillion dollar infrastructure package, a 

surefire way to make the American taxpayers dollars go farther is to eliminate redundancies and 

streamline the Federal permitting process. 

Ms. Colosimo, in your testimony you discussed Section 408 permitting and the Corps 

engagement with other federal agencies to synchronize review. Given the President's desire to 

push for infrastructure improvements, which are desperately needed, how will the Corps handle 

the large number of permit requests that would likely result from a long term 

infrastructure package? How quickly will they be processed? 

Answer: Depending on its location and impacts, an infrastructure project may trigger the need 

for authorization under one or more of the U.S. Army Corps of Engineers (Corps') authorities. 

These include 33 U.S.C. Section 408 (Section408), Section 10 of the Rivers and Harbors Act of 

1899 (Section 10), Section 404 of the Clean Water Act (Section 404), and Section 103 of the 

Marine Protection Research and Sanctuaries Act (Section 103). In addition, an infrastructure 

project may require approval from the Corps' Real Estate Division if it crosses Corps' real 

property interests. 

The Corps' Regulatory Program often has limited jurisdiction over the review oflarge 

infrastructure projects. For example, of the large infrastructure projects on the FAST-41 

Dashboard, such as pipelines and transmission lines, the Corps Regulatory program authority is 

generally limited to regulating certain activities in aquatic resources pursuant to Section 404 of 

the Clean Water Act and Section 10 of the Rivers and Harbors Act. In fact, approximately twothirds of the Corps Section 404 and Section 10 actions on the F AST-41 Dashboard qualify for 

authorization under general permits, which offer an abbreviated review process for certain 

activities that have minimal individual and cumulative adverse environmental effects. Also, of 

the approximately 70,000 bridge, railroad, and road-related activities reviewed by the Corps 

between fiscal years 2011-2016, approximately 97% were reviewed under general permits. 

General permit reviews are completed relatively quickly, often in less than 60 days, so long as 

the Corps has received all required information from the applicant and lead federal agency. The 

Corps expects a large percentage of permit requests resulting from a long-term infrastructure 

package will continue to be processed under general permits. For Section 404 and Section 10 
208 

reviews, the Corps also expects to continue to utilize existing funding authorities, including 

Section 214 WRDA of2000 (as amended), 23 U.S.C. 1390), and 49 U.S.C. 307 that allow 

acceptance of funds to expedite the review of qualifying infrastructure projects. For larger, 

complex projects that do not qualify for a general permit, the review time associated with an 

individual permit review may be extended. The Corps continues to make investments where 

possible in its Regulatory program, including improved training, to ensure its staff are poised to 

be as efficient and effective as possible. 

For those infrastructure projects that may alter a Congressionally authorized Civil Works project, 

permission under Section 408 may be required. The Corps has been critically evaluating and 

working to update Engineer Circular 1165-2-216, the Corps' policy and procedures for Section 

408. The objectives of the policy update include better alignment with other Corps authorities, 

instituting timelines from Section 1156 of the Water Resources Development Act (WRDA) of 

2016, improving nationwide consistency, and delegating decision making to the appropriate 

level. The desired outcome of this effort is greater efficiency and timeliness in decision making 

which will be particularly important if the volume of review actions increase with a long term 

infrastructure package. The Corps also recently issued implementing guidance for contributed 

funds under Section 1156(a)(2) ofWRDA 2016 in June 2017. This authority allows non-federal 

public and private entities to contribute funds for Section 408 reviews and supports the Corps in 

managing a greater level of work than what is capable under appropriations. The updated policy 

document and the contributed funds authority of Section 1156(a)(2) ofWRDA 2016 will be 

essential in providing timely reviews, particularly as workload associated with increased 

infrastructure development increases. 
209 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

Assistant for Water Resources Policy 

U.S. Army Corps of Engineers 

From Senator Claire McCaskill 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

According to fanner Secretary of Homeland Security John F. Kelly, the U.S. Army Corps of 

Engineers (USACE) will be intimately involved in the process of constructing a physical wall 

along the U.S.-Mexico border. Former Secretary Kelly, earlier this year, stated that USACE will 

"conduct programmatic, acquisition, project planning, and project execution activities in support 

of constructing the border wall" and "will execute real estate activities such as title research, 

surveys, and appraise any property to be acquired" to facilitate wall construction. 1 On July 25, 

2017, Minority staff for the Homeland Security and Governmental Affairs Committee (HSGAC) 

received notification from U.S. Customs and Border Protection (CBP) that USACE had solicited 

contractor support to conduct landownership research in the Rio Grande Valley of Texas and that 

USACE would be attempting to negotiate with private landowners for the sale of their property 

by the end of Fiscal Year (FY) 2017. 2 Additionally, multiple media outlets have reported that 

USACE has retained at least one contractor to conduct soil sampling and other geotechnical 

work in areas along the southwest border, including in the Santa Ana National Wildlife Refuge, 

in preparation for the wall that President Trump has ordered. 3 

I) Please describe the programmatic, acquisition, project planning, and project execution 

activities that USACE has conducted and will be conducting in support of border wall 

construction. 

Answer: USACE is working under the following Interagency Agreement with Customs 

and Border Protection for Tactical Infrastructure (i.e. Border Barrier Systems) along the 

Southwest Border to include the majority of work on existing barriers: IAA 

HSBPI 017X00059, as modified (provided as Attachments A, Band C.) 

1 Department of Homeland Security, Post-Hearing Questions for the Record Submitted to 

the Honorable John F. Kelly: "Improving Border Security and Public Safety" (Apr. 5, 2017). 

2 Customs and Border Protection: Notification Regarding Landownership Research (July 

25, 2017). 

3 Trump Administration Preparing Texas Wildlife Refitge for First Border Wall Segment, 

Texas Observer, (July 14, 2017) (www.tt;xa;;QQ~.IT~Lm:gltnul)Q:-horder-waii-!Cxas-wildlifercfuge-breaking); This 'crown jewel' ofwildlife refuges is one of the world's top bird 

destinations. Trump's wall would end public access, Los Angeles Times (July 17, 2017) 

(lvww.latimcs.com/nation/la-mHcxas-bordcr-wall-20170717-storv.html); Engineers Begin 

Preparatory Work for Border Wall Construction, New York Times (July 18, 2017) 

(v, 1~w.nvt imcs.com/20 17/07 I 18/us/politics/border-wall-construction.htrnl). 
210 

The land title research outlined in the July notification pertained to Tactical Infrastructure 

(TI) projects funded in the Fiscal Year 2017 (FY17) enacted budget and to preparatory 

activities for future wall projects as outlined in reprogrammed funding in FY17 that 

authorized these activities. Other activities USACE has conducted on behalf of CBP as 

part of the reprogrammed funds are geotechnical analysis and border/levee wall system 

design. No real estate negotiations will take place for Fiscal Year 2018 (FY18) wall 

projects on behalf of CBP until CBP receives FY 18 construction funding. 

2) Has USACE entered into any interagency agreement or agreements with the Department 

of Homeland Security (DHS), CBP, or any other DHS components or subcomponents 

regarding border wall preconstruction and/or construction activities? If so, please 

provide a copy of the interagency agreement or agreements. 

Answer: US ACE is working under the following Interagency Agreement, IAA 

HSBPIOI7X00059, as modified (provided as Attachments A, Band C) with CBP for 

Tactical Infrastructure (i.e. Border Barrier Systems) along the Southwest Border. 

The preconstruction and construction activities that are part ofthc Scope of Work: Per, 

Executive Order 170125. This Interagency Agreement (IAA) is between the U.S. Army 

Corps of Engineers (USACE) to assist CBP's Office of Facilities and Asset Management 

(OFAM) in performing programmatic, acquisition, project planning, and project 

execution activities for CBP's Border Barrier Systems requirements. 

3) Has DHS entered into any interagency acquisitions with USACE for border wall 

preconstruction and/or construction activities? 

Answer: We conclude that an interagency acquisition is the same as or is a component of 

an Interagency Agreement. Yes, see response to 2 above and only in regard to limited 

preconstruction activities as directed by CBP. 

4) Please provide the names and DUNS numbers for any and all contractors that USACE 

has retained for title research, surveying, geotechnical work, negotiations with 

landowners and/or any other preconstruction activities associated with the border wall 

that President Trump has ordered. For each contract, please also provide a narrative 

description of the work that is being performed along with the contract amount and the 

funding mechanism that is being used to pay for each contract. Was each contract 

competitively bid? 

Answer: Attachment is D is a Table with the relevant releasable information in response 

to Question 4 where US ACE has retained contractors solely on behalf of CBP. All 

contracts were awarded in compliance with federal acquisition laws and regulations. 

5) Along which specific segments of the southwest border has USACE conducted 

landownership research? In the course ofUSACE's research, how many privately owned 
211 

tracts of land have been identified that will need to be acquired by the federal government 

in order to facilitate construction of the border wall that President Trump has ordered? 

From how many individual property owners will those tracts need to acquired? What is 

the estimated fair market value of all tracts of land that will need to be acquired in order 

to facilitate construction of the border wall that President Trump has ordered? 

Answer: USACE has conducted land ownership research in Starr, Hidalgo, and Cameron 

Counties, Texas as work in support of border infrastructure in the Rio Grande Valley 

Sector. This preliminary ownership research is funded by CBP's Congressionallyapproved FY17 reprogramming request. USACE has also conducted land ownership 

research to support fence replacement projects in Texas (El Paso Sector, El Paso Station), 

New Mexico (El Paso Sector, Santa Teresa Station), and California (El Centro Sector, 

Calexico Station; and San Diego Sector (Imperial Beach)). These replacement projects 

were funded in CBP's FY17 appropriation. As USACE works only under the specific 

direction of CBP for current projects, USACE docs not have an estimate for the total 

number of tracts, landowners or fair market value of real estate that may be required for 

future border wall implementation. 

6) Please list each location along the southwest border where USACE or a contractor 

working on behalf ofUSACE has conducted surveys, soil sampling, geotechnical work, 

and/or other preconstruction activities in conjunction with border wall construction. 

Answer: Please refer to Attachment D for a list of relevant USACE contracts by 

assigned project and for a location of the work under each of those contracts. 

7) Has US ACE or a contractor working on behalf of US ACE conducted surveys, soil 

sampling, geotechnical work, and/or other preconstruction activities in the Santa Ana 

National Wildlife Refuge? If so, how and why was this site selected? What weight was 

given to the fact that the wildlife refuge is federally owned during the decision-making 

process regarding where prcconstruction activities should occur? 

Answer: USACE has contracted with firms for preconstruction activities consistent with 

CBP' s mission requirements. In its FY 2018 budget request, DHS has identified the need 

tor 60 miles of border barrier systems in the Rio Grande Valley (RGV) region of Texas, 

to include the area near the northern boundary of the Santa Ana National Wildlife 

Refuge, as an operational requirement. Planning activities for those locations are 

underway in anticipation ofFiscal Year 2018 construction and are funded by CBP's 

Congressionally-approved FY17 reprogramming request. These activities include 

geotechnical analysis, border/levee wall system design, and preliminary title research. 

US ACE understands that CBP selects project priorities based on operational 

considerations. Inquiries on specitlc planning decisions should be directed to CBP. 

8) Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 

1996, as amended, requires the DHS Secretary to consult with the Secretaries of the 
212 

Interior and Agriculture, state and local governments, Indian tribes, and property owners 

"to minimize the impact on the environment, culture, commerce, and quality of life" in 

areas where fencing is to be constructed. 4 What outreach, consultation, and/or public 

notification has been conducted in areas where USACE and/or a contractor working on 

USACE's behalf has begun preconstruction activities related to the border wall that 

President Trump has ordered? Was that outreach, consultation, and/or public notification 

conducted in advance of the prcconstruction activities? What feedback did USACE 

receive as a result of the outreach, consultation, and/or public notification? 

Answer: USACE support has not included consultation activities as described in 

question 8. CBP is responsible for the consultation activities under Section I 02 of 

IIRIRA. As such, this question should be directed to CBP. 

9) Please describe any and all negotiations with private landowners for the sale of property 

at fair market value that US ACE or a contractor working on behalf of US ACE has 

conducted to date in relation to the border wall that President Trump has ordered. 

Answer: USACE performs this function solely in support ofDHS missions and under 

the direction ofDHS. USACE has not entered into negotiations with private landowners 

or completed the purchase of any property based on the Executive Order. 

10) What, if any, additional resources, has USACE requested for FY 2018 or subsequent 

fiscal years for work related to the construction of the border wall that President Trump 

has ordered? What, if any, resources from FY20!7 have been used for work related to 

the construction of the border wall that President Trump has ordered? 

Answer: USACE has not requested any FY 2018 or subsequent funds for the 

construction of the border wall that President Trump has ordered. Any efforts US ACE 

has conducted or will conduct on behalf of CBP are directed by and funded through 

interagency agreements with CBP. All FY 2017 funds have been used exclusively for 

projects prescribed in the 2017 Omnibus Funding Act. 

4 Congressional Research Service, Barriers Along the US. Borders: Key Aurhorities and 

Requirements (R43975) (Jan. 27, 2017). 
213 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

From Senator Claire McCaskill 

"Cutting Through the Red Tape: Oversight of Federal Instructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

US ACE Response 

Attachment A 

IAA HSBPI 017X00059 
214 

ACCBPTANCB OP' CUSTOMER ORDER 

f

ll. :~r:~:r~~:-r::i::ys::::ul (Inclu4e ZIP Code) 2, CUSTOMER ORDRR NO. 3. AMEN0

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ll•APR-2017 11, 500, 000.00 

- WA.SHINO'rolt DC-20~2', ------- ··-------- • ·"'-- ---- 7, The COSTOMSR OROISR identified e~bove ie accepted and the items re(Jl,le&ted will be provided as ~ol1owa; 

{Check aa Applicable) 

I 

a. D ~L ITEMS IfiLL BE PROVIDBD THROUGH RBIMBUli:SiMRN'l' (Category 1) 

: AUTOMATIC JI.BIMBURSI!:I<IBNT NON~TFO FUN'OBtl RBIMBURSBMBHT NON~'fFO 

~ A11l'OH1.TIC RBIMBQRSEJ!lEN'I' TPO ~ l'I.IN:OS.O RBIMBt1RSEMENT TPO 

I ATJI'OMA"l'IC RBIHBURSBHENT IPAC X FUKOSO RBIMBDltSBMBNT HAC 

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d. THIS Jl.CCEPTANCE, FOR CATBGORY I lTBMS, IS QUALIFIED BECAUSE OF ANTICIPATED CONTI~tNCIBS AS TO PINA.U 

PRICIL CHANGBS IN THIS A.CCSP'TANCE E'IOURB WILL BB F'URN!StlED PI!:RlODICA.t.LY UPON DE'I"ERMINIITION OF 

DEFINITI7.ED PRICES, BUT PRIOR TO SUBMISSION O'F' BILLINGS, ,_,_,,,,,,_,,_,_.,. -----

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TO BB PROVIDED TRROOGH RBtMBIJRSBMiNT TO BB PROCI.IRBO BY DlRBCT CITATION OF FtiNOS 

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QUANTITY 8ST1MATSD PR.ICB ITRH NO. QUAKTITT BSTim"l'.BD PRICB 

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17~APR•i017 

PA.OB l OF l 
215 

Page 1 of 4 

DEPARTMENT OF HOMELAND SECURITY 

U.S. CUSTOMS AND BORDER PROTECTION :J,r- L44- j 

4-(.RS t'0 '~ 

INTERAGENCY AGREEMENT 

1. Agreement No. 

HSBP1017X00059 

5. Period of Performance 

From 04/11/1017 To 04/l 012021 

8. Requesting Agency 

Ayem;y Name 

Office/Division· 

POC 

Address. 

DHS- Customs & Border Protection 

Customs and Border Protection 

l 30o Pennsylvonlo Ave, NW 

Procurement DlrertoratE'- NP 1310 

(IAA) 

3. Order No. 4. Requisition No. 

00200978213 

7. Dato IAA_P_r-;;·;,~r~-i 

9. Servicing Agency 

Agency Name. ARMY CORPS OF ENGINEERS 

Office/OMsion: 

poeAddress· 819 TAYLOR ST RM 3A14 

Wa:.hington DC 20229 HWORTH TX /6102-0300 

~?~_P_h_on_e_N_o._:_~~~~~------~~~~-----j~P~O~C~P~h~o~ne~N~o·~-~~~~--------~~~~~~~:------1 

10. Scope of Work 

Per, ExecutiVe Order 170125. 

This. Interagency Agreement (lAA) !s. between the U.S. Army Corp~ of Engineers {USACE) to d~sbt U.S, Cu~torn::. and Borde! Proteltlon (CBP), 

Offlcc of Fac!liti€'> ond A>'>P.t Milnagf'mPnt {OFAM) in performing programmatic, acquis:1t1on, project planning, and project execution 

dt.tlvities for CBP's Bordl!r Bt~rrier Systems requirements< 

Delivery/Shipping Schedule 

':icc Attached DeHvery Schedule 

L __ _ 

r?ct 'a 

1-rcthI /1 I I -1 

fL/~1--;~ (]I I I <fl I ( 1 ltPr ( 7 CBP Form 236 (10/13) 
216 

Page 2 of 4 

16. Invoice/Payment Method 17. Billing Frequency 

D Requesting Agency initiate I PAC 0 Monthly 

I!] Servicing Agency Initiate I PAC 0 Quarterly 

D Credit Card D Semi-annually 

D Other (explain below) D Annual D Advanced Payment (explain below) 

D Other (explain below) 

18. Agency Accounting and Appropriation Data 

6999.3211 USCSGLCS0942063200Z2V015463SB0311 01AGOO BPE753211 

TAS# 07020152017 0533 

CBP Form 236 (10113) 
217 

Page 3 of 4 

• Chiof, 1nterogency & !nternaUona1 

Email 

Signature 

Brtmch Chief- Flnandaf Mcmagement 

CBP Form 236 (10113) 
218 

Terms and Conditions for Assisted Acquisitions 

Purpose 

1.1 The terms and conditions of the Memorandum of Agreement (MOA) between CBP and 

the USACE, dated October 14,2015 and this interagency agreement (lA) govern the 

acquisition assistance provided to the U.S. Customs and Border Protection (CBP), the 

Requesting Agency, by the U.S. Army Corps of Engineers (USACE), the Servicing 

Agency. The MOA terms and conditions shall control in the event of any conflict with 

this lA. 

1.2 The Servicing Agency's obligation to provide supplies or services under this IA and the 

Requesting Agency's obligation to provide funding does not arise until all applicable 

requirements are satisfied and the lA is signed by the required parties at CBP and 

USACE. 

2 Authority 

CBP and US ACE are executing this lA that supports an interagency acquisition under the 

authority of Economy Act, 31 U.S.C. 1535. 

3 Scope 

3.l.l Organizations Authorized to Request Acquisition Assistance 

The following organizations within the Requesting Agency are authorized to obtain 

assistance from USACE: 

Border Patrol & Air and Marine Program Management Office (BPAM PMO), 

Facilities Management and Engineering (FM&E) 

3.1.2 Organizations Authorized to Provide Acquisition Assistance 

The following organizations within the Servicing Agency are authorized to provide 

acquisition assistance to the Requesting Agency: 

Fort Worth District, 

Southwestern Division 

USACE Headquarters 

Engineering Construction Support Office (ECSO) 

Southwestern Division Border Infrastructure Program Management Office 

USACE Supporting Districts, as required by the work in the Statement of Work 

(SOW), through the ECSO 

3.1.3 Limitation(s): The following restrictions apply: None 

4 Description of Products or Services to be Acquired 
219 

See Statement of Work: Border Barrier Systems SOW 

5 Period of Agreement 

This !A becomes effective when signed by the Contracting Officer (CO) and Program 

Manager (PM)/Requirements Official (RO) of the Requesting Agency and the authorized 

official of the Servicing Agency and remains effective until March 31, 2021 unless agreed to 

and amended by both the Servicing and Requesting Agencies. The countersigned lA must 

be returned to the CBP CO or this lA may be subject to cancellation. 

6 Roles, Responsibilities of Servicing Agency and Requesting Agency 

The effective management and use of lAs is a shared responsibility of the Requesting Agency 

and the Servicing Agency. The parties hereby agree to the following roles and responsibilities, 

which are derived from guidance issued by the Office of Management and Budget's Office of 

Federal Procurement Policy (OFPP), available at: 

http://www. whitehouse. gov/sites/defaul tlfi les/ om b/assets/procu rem ent/iac rev ised.pd f 

6.1 Requesting Agency 

Work closely with the Servicing Agency to establish requirements that are clear and 

complete. 

Be a good steward of the agency's funds by ensuring appropriate internal controls are 

in place to ensure interagency acquisition activities are consistent with sound project 

management, contracting, and fiscal practices. 

Work in close collaboration with the Servicing Agency throughout the project 

lifecycle. Make trained and qualified personnel available to support key activities, 

including the timely preparation and execution offunding documents, compliance 

with customer-unique laws and policies, acquisition planning, source selection 

evaluation, and contract administration. 

Provide accurate and timely information to support the Servicing Agency in 

effectively awarding and managing the contract, including evaluation of contractor 

performance and prompt payment. 

Review the general terms and conditions of the !A with the Servicing Agency no less 

than annually and make amendments as necessary. 

6.2 Servicing Agency 

Be a good steward of the Requesting Agency's funds by ensuring appropriate internal 

controls, and applying sound project management, contracting, and fiscal practices. 

Manage all phases of the project lifecycle from requirements development through 

contract closeout, as agreed in the IA. 
220 

Work in close collaboration with the Requesting Agency throughout the project 

lifecycle, responding promptly to inquiries from the Requesting Agency, which may 

include matters regarding process, project status, and funds balance, among others. 

Ensure timely delivery of acceptable goods and services. 

Maintain accurate records and files associated with acquisition assistance activities. 

Review the general terms and conditions of the !A with the Requesting Agency no 

less than annually and make amendments as necessary. 

Help the Requesting Agency comply with the bona fide needs rule by; 

o managing funds according to the Requesting Agency's guidance; 

o recording transactions in a timely fashion; and 

o Implementing and exercising controls to ensure compliance with all applicable 

statutory and regulatory fiscal requirements. 

7 Billing and Payment 

7.1 The Requesting Agency will pay the Servicing Agency for all actual costs associated 

with the provision of services in this lA. CBP reimbursement of costs incurred in the 

performance of work described in the SOW/Performance Work Statement (PWS) will 

be made via the U.S. Treasury Intra-government Payment and Collection (!PAC) 

System on a Servicing Agency initiated basis. 

8 IAFunding 

The Servicing Agency is limited to recovery of only actual costs incurred. The Servicing 

Agency shall notify the Requesting Agency's Contracting Officer's Representative (COR) 

when the costs incurred, together with costs of any outstanding commitments, total 80 

percent(%) of the obligated estimated cost ceiling of this lA. The Servicing Agency shaH 

make no other commitments or expenditures beyond 100% of the funds obligated and shall 

be excused from further performance of the work unless, and until, the Requesting Agency 

CO, or other authorized official, increases the total obligation by modification to the lA. 

8.1 Special Terms for One-year Funding. The total amount to be reimbursed shall not 

exceed the total amount obligated for the current fiscal year. If this lA is issued under 

the authority of the Economy Act (3 I U.S.C. 1535) and the Servicing Agency uses inhouse resources to perform part or all of the agreement, in-house work must stop on 

September 30th ofthe current fiscal year, and any unexpended funds for work to be 

performed in-house must be de-obligated. In-house work that will continue in the 

next fiscal year must be funded, effective October 1'1

, with the new fiscal year's 

funds. If the Servicing Agency obligates the fiscal year funds by awarding a contract 

or an order prior to the expiration of the fiscal year, the funds obligated by such 

award do not need to be de-obligated after September 30. 

8.2 Special Terms for Greater Than One-year Funding. For longer than one-year (e.g. 

two-year, no-year) funding availability, the dates are extended appropriately. 
221 

9 Contract Termination, Disputes and Protests 

9.1 If a contract or order awarded pursuant to this IA is terminated or cancelled or a protest 

or dispute arises from specifications, solicitation, award, performance or termination of a 

contract, appropriate action will be taken in accordance with the terms of the contract and 

applicable laws and regulations. 

9.2 The Servicing Agency shall consult with and seek concurrence from the Requesting 

Agency before agreeing to a settlement or payments to ensure that the Requesting 

Agency has adequate time in which to raise any objections or address any fiscal or 

budgetary concerns arising from the proposed payment or settlement. If concurrence is 

not obtained, the parties agree to refer the matter to the District Engineer, of the 

applicable US ACE District where the Contracting Officer resides, and the CBP FM&E 

Director for resolution before the Servicing Agency agrees to any settlements or 

payments. The Servicing Agency Contracting Officer will delay any decision for 

settlement and payment until no sooner than thirty calendar days after the issue is referred 

to the District Engineer and CBP FM&E Director. 

10 Amendments 

Any amendments to the terms and conditions to this lA must be made in writing and signed 

by both the Servicing Agency and the Requesting Agency. The party proposing the 

amendment must allow the other party a minimum of7 calendar days to review and accept 

any proposed changes before they can take effect. At its discretion, the reviewing agency 

may agree to allow the change to take effect before the reviewing period expires. If the 

parties cannot agree regarding the proposed amendment, the disagreement is subject to the 

provisions on lA interpretation of this agreement. 

II lA Termination 

This lA may be terminated upon 180 calendar days' written notice by either party as a 

unilateral agreement. A bilateral agreement from both parties to terminate can be issued at 

any time during the course of this agreement. If this IA is cancelled, any implementing 

contracUorder may also be cancelled. If the lA is terminated, the agencies must agree to the 

terms of the termination, including costs attributable to each party and the disposition of 

awarded and pending actions. 

12 Interpretation of the lA 

12.1 If the Servicing Agency and Requesting Agency are unable to agree about a material 

aspect of the IA, the parties agree to engage in an effort to reach mutual agreement in 

the proper interpretation of this lA, including amendment of this lA, as necessary, by 

escalating the dispute within their respective organizations. 
222 

12.2 If a dispute related to funding cannot be resolved under 12.1, the parties agree to refer 

the matter expeditiously to their respective Chief Financial Officers (CFO) with a 

recommendation that the dispute be resolved in accordance with Appendix l 0, 

Intragovernmental Transaction (JGT) Guide, of Chapter 4700 of Volume I, Federal 

Agencies, of the Treasury Financial Manual, or subsequent guidance. 

13 Description of Acquisition Assista nee 

The servicing agency will provide the following services to the requesting agency: 

Preparation of the Acquisition Plan (as required) and all applicable acquisition documents 

related to solicitations/contracts that it issues on CBP's behalf, working with the Border 

Patrol and Air and Marine (BPAM) Program Management Office (PMO) as needed; 

Preparation, execution, and administration of those solicitations/contracts; Submitting the 

Congressional Notification (as required) for those contract/task order awards in accordance 

with Term #15 ofthis document. 

14 Small Business Credit 

14.1 CBP, as the requesting agency, must supply the servicing agency with the lowest and 

most specific FIPS 95-2 office code to ensure that the CBP receives the small 

business credit. 

14.2 The servicing agency is responsible for entering the specific CBP code into FPDSNG for the award. 

15 Congressional Notification Requirements 

In accordance with HSAM 3005.303-70, Congressional Notifications are required for: 

- Any contract award including new contract actions being awarded on behalf ofDHS by a 

Servicing Agency through an assisted acquisition in excess of $1 million (including the 

base value and all options). 

- Any modification in excess of$1 million for additional supplies or services that were not 

covered in the Congressional notification for the award of the contract or task or delivery 

order. 

- Any task or delivery order using FY 2012 or later multi-year DHS funds in excess of$!0 

million. 

- Any task or delivery order, in any amount, that causes cumulative obligations in a single 

FY 2012, FY 2013 or FY 2014 multi-year account to exceed 50 percent of the total 

amount appropriated. 

Failure to properly make Congressional notification may result in a violation of the AntiDeficiency Act. Additional details on Congressional notification requirements and the 

required DHS Form 2140-01 are available in Appendix A of these terms and conditions. 

The CO of the Servicing Agency shall prepare and submit DHS Form 2140-01 and the 

SOW/PWS at least six (6) full business days prior to the planned award of the contract action 
223 

via electronic mail to cbppgad@dhs.gov. The subject line must state "Congressional 

Notification for Contract No. X." 

The business day begins at 9:00a.m. Eastern Time (ET). For notifications received after 

9:00a.m. ET, the first full business day will be the day following receipt. For example, if a 

contract or order is to be awarded on a Friday, DHS Form 2140-01 must be received by no 

later than 9:00a.m. the previous Friday. CBP will submit the Congressional notification 

information and will send notice via email of the earliest award date to the Servicing Agency 

CO. NOTE: The contract award or order issuance cannot take place prior to notice 

from CBP. 

Congressional Notification requirements are subject to change based on the requirements 

stated within DHS's annual appropriations. 

16 Review of Terms and Conditions 

If the period of performance of this lA exceeds one year, the parties agree to jointly review 

the terms and conditions of the lA at least annually. Appropriate changes will be made by 

amendment to this IA. 

17 Signatures 

By signing the Terms and Conditions document, the Requesting Agency confirms that a bona 

fide need exists and that funds are for the designated purpose, meet time limitations, and are 

legally available for the acquisition described in the lA; that all unique funding and 

procurement requirements, including all statutory and regulatory requirements applicable to 

the funding being provided, have been disclosed to the Servicing Agency; and all internal 

reviews and approvals required prior to transferring funds to the Servicing Agency have been 

completed. Further, both the Requesting Agency and the Servicing Agency agree to the 

terms and conditions as set forth herein. 
224 

Requesting Agency Contracting Officer: 

Contracting Ot1icer 

Requesting Agency Business Operations Division Director 

Director, IJPAM PMO 

Servicing Agency Senior Ot11cial: 

Chief~ Interagency und International Services 

Southwest Division Regional Business Director 

Servicing Agency Program Director: 

4/14/17 

Date 

4/14/17 

Date 

4/14/17 

Date 

Date 
225 
226 

APPENDIX A 

Congressional Notiftcation Requirements 

GENERAUROUTINE CONGRESSIONAL BSFIT CONGRESSIONAL 

NOTIFICATIONS NOTIFICATIONS 

CN REQUIRED • New contracts, including IDIQ and letter contracts, SBU & . New contracts, task orders, delivery orders, 

AlE Service Contracts interagency agreements and their 

(see HSAM • New contracts awarded by an lA Servicing Agency modifications lAW thresholds below. 

Appendix D) • Orders under DHS/CBP multiple award contracls using FY 

2010 or later appropriated funds 1. TOs, DOs, lAs> $1M: 5 full business 

• Orders & Mods> threshold of IDIQ contract days before anticipated award date 

• Orders >$10M using FY12+ DHS Multi-year funds 2. Mods to Contracts, TOs, DOs or lAs 

• All Orders using FY12+ Multi-year funds that caused the ?_$25M: 5 full business days beforo 

cumulative amount to exceed 50% of the total amount anticipated award date 

appropriated. 3. New TOs, DOs or !As ?_$25M: FY09/10/11 • 

• Mods for additional supplies/services exceeding $1 million 18 full business days or for FY12 & 

beyond the original scope of the contract forward, 5 full business days before 

• Non-rompetilive aclions over $1M resulting in a Mod anticipated award date 

• SB Set-Asides, see FAR 15.503(a)(2) 4. New contract awards, EAGLE and 

• Orders under OHS BPA lAW FAR 13.5, established under Flrs!Source orders> $1M -processed lAW 

tho Commercial Item Test Program HSAM 3005.303-70- 5 business days 

before anticipated award date • Letters of intent> $1 million 5. NOTE: Add 1 day for CSB POC to review • Contract actions Subject to Availability of Funds 

CNNOT • Mods within the scope and terms of the existing contract • Contracts and Ordors under $1 million 

REQUIRED • Administrative mods or mods to exercise option periods 

• Orders under IDIQ contracts up to the contract threshold • Modifications under $25 million 

using FY 2009 and prior funds 

• Orders under non-DHS 1010 contracts, including GSA 

I 

FSS-up to the threshold or if not affected by FY12 and 

subsequent multi-year funding 

• Orders under single award IDIQ contracts 

• DHS/CBP BPAs using annual funds established under 

GSA FSS contracts lAW FAR 8.405 and orders placed 

under them. 

• Execulion of an lA with a Servicing Agency 
227 

DEPARTI~ENT OF HOMELAND SECURITY 

CONTRACT AWARD NOTIFICATION 

Competition Sensitive- This document contains Source Selection information (See FAR 2.101 & 3.104}. 

The infonnaUon contained herein is. not to be divulged except .as p"ermitted by law or as at.~thorized by the Contracting Offic:er for the procurement. 

AGENCY !NFORMA TION 

1. Component 

2. Contracting Officer: 3, Project Officer: 

Telephone Number. Telephone Number: 

E-Mail Address: E-Mail Address: 

,, :<: :,.- ' CONTRACTOR INFORMATION 

4. Contractor: 5. Contractor Address: lnclf.}de City, State and Zip Code 

Telephone Number: 

6a. Procurement Instrument Identifier 6b. Modification No.: 9. Funding Information (From Procurement Request): 

(PIID)No.: FY Used: PPA: 

6c. Order No.: 6d. Call No.: Treasury Account Symbol 

(&-9 c-haracter$, daahes, 

7a. Anticipated Date of A word: 171>. Contract Type: decimal poinf{J 01 spaces]: 

8. Oi>ligated Cost or Price Total Amount of Action Title of Account: 

of !his Action: Including Options: 

$ $ 

10. Method of Acquisition: Che<!< One 

D Noncompetitive 0 Competitive, Sealed Bld D Competitive, Negotiated 

11. Major Subcontractor Name{s ): Include Street AddrestJ, City, State, and Zip COOe 

Subcontmctor Subcontrnctor Subcontractor 

12. P!.ace(s) of performance (contractor and major sulx:ontractor(s)}: Include Sf~i Address, City, Slate and Zip CotR 

Contractor Subcontractor Subcontractor 

Summary of work to be performed: (lncJude enough information to describe the effort to be performed and ita purpose. Attach a copy 

of the detailed ataferrK>nf o/l\-'Ork. It h: imperatfve that a oompkte- description be provided that is sufffcient for prepan·ng a press release or 

providin-g a meaningful de-scripficn ~\'hen nofifyi.ng intereste<t parlieo.) 

Contracting Officer Signature I Date 

DHS Fonn2141l-!lt {5114) 
228 

Border Barrier Systems 

Interagency Acquisitions Supplement 

Determination and Findings 

Authority to Enter into an Interagency Acquisition Under the Economy Act 

Based on the following determination and findings, in accordance with the authority of the 

Economy Act (31 U.S.C. 1535), as implemented in subpart 17.5 of the Federal Acquisition 

Regulation (FAR), the Requesting Agency, Department of Homeland Security, U.S. Customs 

and Border Protection (CBP), intends to enter into an Interagency Acquisition (lA) with the 

Servicing Agency, the United States Army Corps of Engineers (USACE). 

FINDINGS 

I. The Requesting Agency has a need for the Servicing Agency to provide and perform 

programmatic, acquisition, project planning, and project execution activities in support of 

the U.S. Border Barrier Systems in response to Executive Order 13767. The total cost of 

the interagency acquisition (IAA) is estimated to be $4.2Billion. 

This agreement is effective for four years from the date the IAA is issued, which is 

estimated to be April 11, 2017. As a result, the Base Period of this IAA is estimated to be 

April!!, 2017- April 10, 2021. This agreement will also include two Option Years, 

estimated as follows: 

Option Year I: April! I, 2021 April 10,2022 

Option Year 2: April I 1, 2022 -April I 0, 2023 

2. The USACE is a long-standing partner ofCBP in the construction of border 

infrastructure. In addition to having over 20 years of tactical infrastructure and facility 

project construction, USACE was the executing agency for previous CBP fence projects, 

including Pedestrian Fence (PF) 225, PF70, and Vehicle Fence (VF) 300 projects. 

Proven in its history in assisting CBP with these past fence projects, the USACE has the 

construction and acquisition experience/expertise to provide the type of services required 

for the Border Barrier Systems, which is not currently available within the Requesting 

Agency. The USACE has the manpower, resources, and acquisition capacity to 

successfully oversee planning, contract execution, and contract oversight, which the 

Requesting Agency does not currently have, but will be necessary, especially when 

considering the numerous projects associated with the planned Border Barrier Systems. 

CBP cannot obtain these services as conveniently or economically on its own as it can 

through the USACE. CBP does not have the wealth of resources, experience, and 

technical/acquisition knowledge that the USACE has in construction and constructionrelated activities, especially for the number of projects planned for the Border Barrier 

Systems. Due to its lack of resources and expertise, CBP would face challenges in 

awarding and managing any contracts with a private solll'ce, which would more than 

likely lead to cost and schedule delays, thereby impacting its ability to meet its deadlines 
229 

Border Barrier Systems 

for the Border Barrier Systems. In contrast to CBP's limitations, the USACE has the 

resources, nationwide, to effectively manage and oversee all construction aspects of th~se 

projects, including all programmatic, acquisition, project planning, and project execution 

activities. Not only does the USACF: have internal, local staff along the southwest bot·der 

to assist in project execution, but it also has programmatic und real estate support through 

its own contracts to supplement support where needed. In addition, the USACE has 

established rDIQ construction contracts, which it can utilize to procure the proj~ctslwork 

necessary t<Jr the Border Wall. These established contracts streamline the acquisition 

process and get contmcts in place much more efficiently and effectively than CBP could 

if it procured the projects itself. Utilizing these established US/\C:E contracts ullows 

C:RP to meet its deadlines to construct the Border Barrier Systems. To date, the USACE 

has been responsive and providcu CBP with the desireu programmatic support and 

requirements on schedule and within budget. It is expected they would perform 

accordingly on these projects as well. 

3. Nothing in this requirement conflicts with the authority of the servicing agency. 

4. As discussed in Section two (2) of this document, th~ servicing agency has capabilities or 

expertise to cnkr into a contruct for such supplies or services which is not available 

within the requesting agency. 

5. It is in the best interest of the Government to issue an !AA since the supplies or services 

cannot be obtained as conveniently or economically by contracting directly with a private 

source for the reason(s) stated in Section 2 above. 

6. The requesting Rgcncy shall furnish a copy of the D&F to the servicing agency with the 

order. 

DETERMINATION 

Based on the above findings, I hereby determine that it is in the best interest of the Government 

to enter into an IA with the servicing agency. 

Signature: 

Date: 4111/17 

Signature: 

Date: 
230 

Determination of Best Procurement Approach for Assisted Acquisitions 

FAR 17.502-1 

IAA No. HSBP1017X00059 PR No. [20097828] 

Based on the following determination and findings, in accordance with the authority of the Economy Act (31 

U.S.C. 1535), as implemented in subpart 17.5 of the Federal Acquisition Regulation (FAR), the Requesting 

Agency, Department of Homeland Security, U.S. Customs and Border Protection (CBP), intends to enter into an 

Interagency Acquisition (lA) with the Servicing Agency, the United States Army Corps of Engineers (USACE). 

FINDINGS 

1. The Requesting Agency has a need for the Servicing Agency to provide technical expertise and support 

for design standard, master planning, and acquisition management requirements encompassing program 

and project management, cost estimating, design, real estate oversight, and environmental planning 

support through an assisted acquisition. 

2. The USACE is a long-standing partner of CBP in construction of border infrastructure. In addition to over 

20 years of tactical infrastructure and facility project construction, US ACE was the executing agency for 

the previous Pedestrian Fence (PF) 225, PF70, and Vehicle Fence (VF) 300 projects. The USACE has 

the manpower and acquisition capacity to oversee planning, contract execution, and contract oversight. 

The USACE also has the authority, experience and expertise to provide the type of services required, 

which is not available within the Requesting Agency. Additionally, the supplies or services cannot be 

obtained as conveniently or economically by contracting directly with a private source because choosing 

another source would negate the technical knowledge and expertise possessed by the USACE, and the 

advantages to be gained by utilizing the USACE's ability to respond to·construction-based programmatic 

support requirements on a national scale, Specifically, USACE has contracts nationwide and local staff in 

areas of the southwest border to effectively oversee the construction and real estate requirements. To date, 

the USACE has been. responsive and provided CBP with the desired programmatic support and 

requirements on schedule and within budget. 

CBP cannot obtain these services as conveniently or economically on its own as it can through the 

USACE. CBP does not have the wealth of resources, experience, and technical/acquisition knowledge 

that the US ACE has in construction and construction-related activities, especially for the number of 

projects planned for the Border Barrier Systems. Due to its lack of resources and expertise, CBP would 

face challenges in awarding and managing any contracts with a private source, which would more than 

likely lead to cost and schedule delays, thereby impacting its ability to meet its deadlines for the Border 

Barrier Systems. In contrast to CBP's limitations, the USACE has the resources, nationwide, to 

effectively manage and oversee all construction aspects of these projects, including all programmatic, 

acquisition, project planning, and project execution activities. Not only does the USACE have internal, 

local staff along the southwest border to assist in project execution, but it also has programmatic and real 
231 

estate support through its own contracts to supplement support where needed. In addition, the USACE 

has established IDIQ construction contracts, which it can utilize to procure the projects/work necessary 

for the Border Barrier Systems. These contracts streamline the acquisition process and get contracts in 

place much more efficiently and effectively than CBP could if it procured the projects themselves. 

Utilizing these established USACE contracts allows CBP to meet its deadlines to construct the Border 

Barrier Systems. To date, the USACE has been responsive and provided CBP with the desired 

programmatic support and requirements on schedule and within budget. It is expected they would 

perform accordingly on these projects as well. 

3. Construction acquisition and project management are some of the USACE's core capabilities. They have 

access to multiple vendors nationwide and have the in-house technical expertise, as well as the capability, 

to award the appropriate contract for the Border Barrier Systems requirements which will enable a 

streamlined, and as needed, an expedited pre-award and award process. Using the USACE's expertise in 

this area is resource advantageous because alternatively, CBP would be required to solicit, award, and 

manage multiple contracts, which would necessitate an increase in cost and staff, and could potentially 

lead to delays in delivering the Border Barrier Systems to the Border Patrol. Additionally, the USACE 

provides a benefit of national coverage, as it has locations nationwide to be able to support CBP's 

requirements. The USACE is also very familiar with CBP and its mission, as it has significant experience 

with CBP operations and the programmatic support requirements of CBP facilities and tactical 

infrastructure. 

With regard to costs, the USACE charges CBP for the work it self-performs on CBP requirements as GSscale time, which is reasonable as those rates are established by the Government. For all work that the 

US ACE contracts out to other sources, it negotiates those prices to ensure the Government receives the 

best value possible for the services it receives. Those costs are then passed on to CBP to pay under the 

IAA, which have already been determined fair and reasonable due to the USACE's negotiations. 

As a basis for determining that an IA was the optimal and most cost effective strategy, various alternatives 

were considered based on the Border Patrol and Air and Marine (BPAM) Program Management Office's 

(PMO) history of obtaining programmatic support services in the past for CBP FM&E BPAM PMO 

facilities. These alternatives included: 

In-House (CBP) Resources 

ii Existing DHS or CBP Contracts 

iii New Contract 

iv Servicing Agency In-House Resources 

v Existing Servicing Agency Contracts 
A detailed description of the advantages and disadvantages of each alternative are shown in the table below. 

1 ,.,·. , -Advantages· 

1. In-House (CBP) 

Resources 

2. Existing DHS 

orCBP 

contracts 

3. New Contract 

• Greater control over program performance and 

quality of programmatic support activities 

• Quicker identification of issues/actions before they 

become critical requirements 

• Reduces contract administration/ modifications 

• Greater control over program performance and 

quality of programmatic support activities 

• Quicker identification of issues/actions before they 

become critical requirements 

• Provides increased visibility and oversight over the 

Contractor) performance 

• Greater control over program performance and 

quality of programmatic support activities 

• identification of issues/actions before they 

become critical requirements 

• Provides increased visibility and oversight over the 

Contracto(s performance 

4. Servicing Agency , .. In-house expertise to provide the services necessary 

In-House Resources to perform programmatic activities in support of 

Border Barrier requirements 

• Cost/resource effective due to the availability of 

resources (materia!/ construction equipment} and/or 

contractor support needed to perform programmatic 

support activities based on similar program 

management support USACE already provides. 

, 

• No inHhouse expertise in the quantities necessary to 

provide the services required to perform programmatic 

support activities for facilities and Tt in such a manner as 

to support mission requirements 

" Not cost/resource effective due to the number of 

certified/trained employees with the requisite experience and expertise CBP would need to obtain/maintain to perform programmatic .support 

activities in support of multiple facilities, Tl, system, and 

PMO requirements 

There are no known OHS or CBP contracts that can 

provide the size and scope needed to perform the 

construction-based programmatic services for the BPFTI 

PMO facilities and tactical infrastructure to meet CBP 

mission requirements. 

• Increases burden on Government to manage multiple 

contracts and vendors (i.e., increased resources 

required) 

.. Increases contract administration for each contract with 

the need to have a good understanding ofthe pre and 

post award activities throughout the construction-based 

programmatic acquisition Hfecyde 

• Introduces the potentia! for long Procurement 

Administrative Lead Time (PALT) when competing requirements (based on unfamiliarity with construction 

industry and vendors throughout CONUS) 

• Minimizes CBP's abllity to have "direct" control over 

program performance and quality of programmatic 

support activities 

• Delays identification and awareness of issues/actions 

(via USACE} before they become critical requirements 

Not recommNot recomm

Not recomme

Recommend

• USACE is th

agency tha

execute th

required by 

• No other a

the extensi

experience 

to complet
• Reduces contract administration since USACE will 

administer any contracts awarded as a result of CBP 

programmatic support requirements 

.. Capitalizes on lessons learned from previous contracts 

CBP has had with USACE 

.. Agency labor is GS Scale time, which are rates 

established by the government and are therefore 

considered reasonable 

5. Existing Servicing I • In-house expertise to provide the services necessary I • There are no known existing USACE contracts that can 

Agency Contracts to perform programmatic activities in support of 

Border Barrier requirements 

• Cost/resource effective due to the availability of 

resources (material/ construction equipment) and/or 

contractor support needed to perform programmatic 

support activities based on similar program 

management support USACE already provides. 

• Reduces contract administration since USACE will 

administer any contracts awarded as a result of CBP 

programmatic support requirements 

• Agency labor is GS Scale time, which are rates 

established by the government and are therefore 

considered reasonable 

provide the size and scope needed to perform the 

construction-based programmatic services for BPFTI 

PMO facilities and tactical infrastructure to meet CBP 

mission requirements 

needed co

based pro

support w

personnel 

combinati

house per

augmente

contracted 

• USACE wil

its own res

necessary 

contracted 

support a 

work requ

to provide 

number of 

capabilitie

may not h

house. 

Not recomm

4. DHS/CBP funds (current and future appropriations) used to acquire these services will comply with applicable DHS/CBP 

appropriation limitations, and all applicable laws and policies. 

5. The Servicing Agency is able to comply with the requesting agency's statutes, regulations, and policies, including any uniq

acquisition and fiscal requirements. 
234 

DETERMINATION 

DETERMINATION AND FINDINGS 

Determination of Best Procurement Approach 

Border Barrier Systems 

Based on the above findings, l hereby determine that enter·ing into an interagency 

acquisition with the servicing agency, USACE, is the best procurement approach for the 

agency's requirement. 

Signed: 

4/11/17 

Date 

Diret:lor, BPAM PMO 

4/1 lll7 

Date 

CBP Procurement 
235 

BORDER BARRIER SYSTEMS 

INTERAGENCY AGREEMENT 

STATEMENT OF WORK 

BETWEEN 

U.S. CUSTOMS AND BORDER PROTECTION AND 

l,J.S, ARMY CORPS OF ENGINEERS 

I. AUTHORITY 

The authority of the Department of Homeland Security (DHS), U.S. Customs and Border 

Protection (CBP) ("Requesting Agency") and the U.S. Army Corps of Engineers (USACE) 

("Servicing Agency") to enter into this Interagency Agreement (IAA) is the Economy Act of 

1932 (31 U.S.C. 1535), resulting in an assisted acquisition. 

II. OBJECTIVE/PURPOSE 

This Interagency Agreement (IAA) is between the U.S. Army Corps of Engineers (USACE) U.S. 

Customs and Border Protection (CBP) to assist CBP's Office of Facilities and Asset 

Managem'ent (OFAM), Border Patrol Air and Marine (BPAM) Program Management Office 

(PMO) in performing programmatic, acquisition, project planning, and project execution 

activities in support of the U.S. Border Wall as required by Executive Order 13767 (Attachment 

A). 

The goal ofUSACE is to execute the assigned CBP projects on schedule and to seek 

opportunities to continually improve service to CBP. Applying best practices, the USACE will 

continually strive to improve its delivery of high quality products and services on time and at the 

best value. 

The partnership with USACE is essential to completing border barrier construction. CBP has a 

need for the US ACE to provide technical expertise and support for design standard, master 

planning, and acquisition management requirements encompassing program and project 

management, cost estimating, design, real estate oversight, environmental planning, construction 

and contract administration support through an assisted acquisition. CBP and USACE have a 

memorandum of agreement (MOA) that establishes a mutual framework governing the 

respective responsibilities of US ACE and CBP for the provision of goods and services pursuant 

to the Economy Act (31 U.S.C. § 1535). 

III. SCOPE 

This Statement of Work describes the comprehensive scope of support services for CBP's 

Border Barrier Systems requirements. Specific details on each project will be documented in 

Project Requirement Documents (PRD) agreed to by the project team members from both the 
236 

BORDER BARRIER SYSTEMS 

Servicing and Requesting agencies. PRDs will be included in the IAA file, but all changes within 

scope of the PRDs and this IAA will be executed via the BPAM Change Management Process. 

Modifications to the IAA will be issued every quarter to account for the updates made through 

the Change Management Process. 

IV. REQUIREMENTS/TASKS: 

USACE will use its best efforts to provide the following services either by contract or by inhouse efforts to support CBP's Border Barrier Systems requirements: 

a. Provide program and project management support and expertise (using either inhouse or contractor resources), including but not limited to: 

I) Supporting overarching program management requirements and reporting needs 

(includes USACE enterprise level oversight and engagement). 

2) Providing complete project management services to include cost, schedule, and 

scope management. 

3) Tracking project progress and providing progress reporting and updated schedules 

through regular reporting, periodic reviews, and maintaining current data in the 

Facilities and Infrastructure Tracking Tool (FITI) database or equivalent system 

4) Supporting project closeout activities to ensure that all obligations, expenditures, 

and vouchers are finalized and executed, excess funds are de-obligated, and 

financial records for the project are properly closed out 

5) Assisting in resolving warranty issues should the contractor refuse to address these 

items, as applicable 

6) Providing project scoping, studies, investigations, evaluations, consultations, 

conceptual design, value engineering, and operation, monitoring, and topographic, 

geotechnical, and environmental survey services. 

7) Tracking project progress and providing progress reporting and updated schedules 

(including construction schedules provided by contractors) through regular 

reporting, periodic reviews, and maintaining current data in the FITI database or 

equivalent system from project initiation to project closeout. · 

8) Analyzing project, cost and schedule risk, risk analyses, and develop mitigation 

strategies to minimize the impact to the project over the lifecycle of the project. 

9) Providing cost trends and analysis, and generate cost reports and life cycle cost 

estimates as applicable. 

I 0) Providing detailed reports of costs incurred. 

II) Participating in regular status updates (i.e., Weekly Calls and Program Management 

Reviews) as required. 

12) Providing environmental and real estate compliance support, including: 

2 
237 

BORDER BARRIER SYSTEMS 

a) Support of environmental compliance requirements such as the preparation and 

review of biological and cultural survey reports, environmental assessments, 

environmental stewardship plans, biological resource plans, environmental 

stewardship summary reports, environmental impact statements, Findings of No 

Significant Impact, Records of Decision, mitigation plan(s), and other 

associated documentation requirements in compliance with the National 

Environmental Policy Act (NEPA) of 1969, DHS Directive 023-0 I, 

Environmental Planning Program and CBP policies and procedures for land 

acquisition. Additional activities include support of data identification, 

collection (including site visits and interviews), development, and 

interpretation; sampling and analysis; and human health risk and environmental 

impact evaluations and reports. 

b. Provide technical, contractual, and project management experience to develop and 

execute acquisition strategies, including but not limited to: 

l) Design-Bid-Build (DBil), Design-Build (DB), AlE Brooks Act, Services and/or 

other recommended acquisition vehicles and/or approaches. 

2) During acquisition strategy discussions, identifying available contra~ting vehicles in 

other USACE districts. 

3) As required, developing Requests for Proposals (RFP), Invitations for Bids, 

Independent Government Estimates (IGE), Acquisition Plans, Statements of Work 

(SOW)/Statements of Objectives (SOO)/Statements of Need (SON), Source 

Selection Evaluation Boards and other necessary acquisition documentation in 

support ofCBP Tactical Infrastructure (Tl) construction requirements. 

c. Provide program management, real estate, environmental, and A/E support in the 

preparation of designs including plans, drawings, design analyses, specifications and cost 

estimates required to execute a site-specific construction project (including studies and 

surveys). This support will also include landscaping, value engineering, as well as 

reviews of all of the above products and services. Othe1· design phase support includes 

but is not limited to: 

I) Providing civil, mechanical, structural, electrical, and geotechnical services to 

support design requirements for Tl based on the most current version of the BPAM 

TI Design Standards. 

2) Supporting DBB requirements, including developing statements of work (SOW) for 

design services, acquiring A/E design services, developing designs, developing 

SOWs for construction services, acquiring construction services, and constructing 

the project. 

3) Supporting DB requirements, including developing SOWs for DB services, 

acquiring DB services, and designing and constructing the project. 

4) Ensuring all environmental and real estate requirements are satisfied before the 

construction phase begins. Identifying any environmental concerns and best 

management practices (BMPs) and additional real estate interests (not identified 

during the planning phase) that may be required to access construction, utilities, and 

other needs. 

3 
238 

BORDER BARRIER SYSTEMS 

5) Provide management updates to the BPAM TI Design Standards. 

d. Provide support during the border barrier systems construction phase of projects, 

including but not limited to: 

I) Providing contract administration & oversight by ensuring construction contract 

requirements are met, overseeing contractor progress, validating compliance with 

Davis-Bacon Act wage rates, reviewing and evaluating changes that originate from 

the contractor, reviewing progress payments, and performing quality assurance. 

2) Reviewing, evaluating, and incorporating change requests, and providing 

notification of any field modifications following established CBP Change 

Management Processes prior to any modifications. 

3) Providing resident engineering expertise and participating in weekly construction 

progress meetings. 

4) Performing environmental monitoring and cultural surveying, addressing 

environmental issues, conducting environmental and real estate stakeholder 

outreach, and applying BPAM construction BMPs as required throughout the entire 

construction phase. 

5) Coordinating and conducting final inspections and walkthroughs prior to acceptance 

to identify any deficiencies that must be corrected. 

6) Supporting project closeout activities to ensure that all obligations, expenditures, 

and USACE and contractor vouchers are finalized and executed, excess funds are 

de-obligated, and financial records for the project are properly closed out. 

7) Assisting in resolving warranty issues should the contractor refuse to address these 

items. 

8) Submitting closeout and project documentation through FITI or equivalent system, 

to include as built drawings, warranties, O&M manuals, acceptance letter, final 

inspection notice, final punch list, etc. (as applicable). 

9) Providing construction management services to manage quality, cost and schedule 

in accordance with established USACE processes. 

I 0) Providing technical engineering support, as required, to CBP for construction of 

Tactical Infrastructure projects. 

V. ESTIMATED COST BREAKOUT aNCLUDING APPLICABLE FEES): 

Subject to the appropriation of funds by Congress, this Interagency Agreement is estimated to be 

in the amount of $4.2 Billion and will include requirements and activities, assisted and nonassisted, associated with CBP's Border Barrier Systems program. 

The initial value of the Base Period is $11,500,000, which is reflected in "1.0 Program 

Management" in the table below. This funding includes real estate and overall program and 

project staffing. Staffing includes but is not limited to functional areas in business operations, 

acquisition, design and construction management, real estate, program and project management, 

4 
239 

BORDER BARRJER SYSTEMS 

as well as public affairs. The 

acquisition activities) will be fimded 

t'Pnnm>mc•ntc (assisted acquisition and non-assisted 

modifications to this agreement as funding 

5 
240 

BORDER BARRIER SYSTEMS 

All costs covered under this agreement will be reimbursable, and actual costs are dependent on 

the work performed. This budgetary estimate is based on a summation of all the USACE labor, 

contract awards (issued by USACE), and other direct costs assumed to be required to fund the 

portfolio of projects executed under this IAA (through closeout of the contracts issued by 

USACE and their warranties). Additional supporting documentation on the basis of the cost 

estimates will be available in the Project Requirement Documents (PRDs). PROs will be 

executed via the BPAM Change Management Process, and modifications to the IAA will be 

issued every quarter to account for the updates made through the Change Management Process. 

As projects are better defined and PROs are updated, changes to this section and the rest of the 

lAA will be issued in accordance with this process. 

VI. DELIVERABLES: 

USACE must provide an electronic version of the following: 

• Weekly updates in the FlTT or equivalent system 

• Bi-weekly expense burn rate report by P2 number 

Monthly (weekly, as required) Project Delivery Schedule 

VII. PLACE OF PERFORMANCE 

The place of performance for this requirement shall include southwest border locations, 

including but not limited to San Diego (SOC), El Centro (ELC), Yuma (YUM), Tucson (TCA), 

El Paso (EPT), Big Bend (BBT), Del Rio (DRT) Laredo (LRT), and Rio Grande Valley (ROY) 

Sectors. 

VIII. PERIOD OF PERFORMANCE 

The Base Period of this Agreement is through four years from date of award, which is estimated 

to be from April 10, 2017- April 9, 2021. This agreement also includes two Option Years as 

follows: 

Option Year I: April I 0, 2021 -April 9, 2022 

Option Year 2: ApriliO, 2022- April 9, 2023 

IX. FUNDING 

The initial value of the Base Period is $11,500,000. This funding includes real estate and overall 

program and project staffing. Staffing includes but is not limited to functional areas in business 

operations, acquisition, design and construction management, rea! estate, program and project 

management, as well as public affairs. The remaining requirements (assisted acquisition and 

6 
241 

BORDER BARRIER SYSTEMS 

non-assisted acquisition activities) will be funded through moditications to this agreement as 

funding becomes available. 

Although funding for multiple functional areas will be provided to US ACE via a single line item 

on the lA A, USACE will track funding and the associated functional areas via "P2" projects. P2 

is u suite of commercial-oft~thc-shclf (COTS) software applications configured to support 

project execution, which ties together project details with project financial information. P2 

provides project development teams with the ability to manage their projects using proven 

Project Management best practices. P2 also allows for web-based executive level, districtspecific, regional, and customer repotis. Any modifications of funding between P2s at USACE 

must have an approved CBP change request and be administered via the BPAM Change 

Manageme.nt Process. 

Specific funding information is us follows: 

Cost Center: 942063200 

Order: Z2VQ 

Fund: 15463 

Functional Area: SBOJIIOtAGOO 

Fund Center: BPE75 

PR: 20097828 

X. POINTS OF CONTACT 

(Division Director/Program Manager) 

Marine Office (BPAM PMO) 

-

CBP Budget Official 

Border 

Phone: 

E-mail: 

~er Representative 

Border and Marine 

Phone: 

Management Oftice (llPAM PMO) 

Management Office (BPAM PMO) 

7 
242 

BORDER BARRIER SYSTEMS 

Contracting Officer 

US and Border l'rotection/DHS 

-

Contrncting Officer 

usc 

USACE, l'l Worth 

Deputy Director, SWD Director for l3order l3nrrier Systems 

USACE, rt Worth 

8 
243 

BORDER BARRIER SYSTEMS 

XI. PARTICIPATING AGENCY INFORMATION 

Specific Agency information is as follows: 

Pull Agency Name: U.S. Army Corps of Engineers, Fort Worth, District 

Full Agency Addressii:l8illii9l'il['alylloiirliSii't, Rm JA 14, Fort Worth, TX 76102 

Telephone Number: • 

Fax Number:······ 

Tax Identification Number: 62-1642142 

DUNS Number: 068112791 

Agency Locator Code: 00008736 

9 
244 

The White House 

Office of the Press Secretary 

For Immediate Release 

January 25, 2017 

Attachment A 

Executive Order: Border Security and 

Immigration Enforcement Improvements 

EXECUTIVE ORDER 

BORDER SECURITY AND IMMIGRATION ENFORCEMENT IMPROVEMENTS 

By the authority vested in me as President by the Constitution and the laws of the United States of 

America, including the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) (INA), the Secure Fence 

Act of 2006 (Public Law 109 367) (Secure Fence Act), and the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 (Public Law 104 208 Div. C) (IIRIRA), and in order to ensure the 

safety and territorial integrity of the United States as well as to ensure that the Nation's immigration 

laws are faithfully executed, I hereby order as follows: 

Section 1. Purpose. Border security is critically important to the national security of the United 

States. Aliens who illegally enter the United States without inspection or admission present a 

significant threat to national security and public safety. Such aliens have not been identified or 

inspected by Federal immigration officers to determine their admissibility to the United States. The 

recent surge of illegal immigration at the southern border with Mexico has placed a significant strain on 

Federal resources and overwhelmed agencies charged with border security and immigration 

enforcement, as well as the local communities into which many of the aliens are placed. 

Transnational criminal organizations operate sophisticated drug- and human-trafficking networks and 

smuggling operations on both sides of the southern border, contributing to a significant increase in 

violent crime and United States deaths from dangerous drugs. Among those who illegally enter are 

those who seek to harm Americans through acts of terror or criminal conduct. Continued illegal 

immigration presents a clear and present danger to the interests of the United States. 

Federal immigration law both imposes the responsibility and provides the means for the Federal 

Government, in cooperation with border States, to secure the Nation's southern border. Although 

Federal immigration law provides a robust framework for Federal-State partnership in enforcing our 

immigration laws and the Congress has authorized and provided appropriations to secure our 
245 

borders the Federal Government has failed to discharge this basic sovereign responsibility. The 

purpose of this order is to direct executive departments and agencies (agencies) to deploy all lawful 

means to secure the Nation's southern border, to prevent further illegal immigration into the United 

States, and to repatriate illegal aliens swiftly, consistently, and humanely. 

Sec. 2. Policy. It is the policy of the executive branch to: 

(a) secure the southern border of the United States through the immediate construction of a physical 

wall on the southern border, monitored and supported by adequate personnel so as to prevent illegal 

immigration, drug and human trafficking, and acts of terrorism; 

(b) detain individuals apprehended on suspicion of violating Federal or State law, including Federal 

immigration law, pending further proceedings regarding those violations; 

(c) expedite determinations of apprehended individuals' claims of eligibility to remain in the United 

States; 

(d) remove promptly those individuals whose legal claims to remain in the United States have been 

lawfully rejected, after any appropriate civil or criminal sanctions have been imposed; and 

(e) cooperate fully with States and local law enforcement in enacting Federal-State partnerships to 

enforce Federal immigration priorities, as well as State monitoring and detention programs that are 

consistent with Federal law and do not undermine Federal immigration priorities. 

Sec. 3. Definitions. (a) "Asylum officer" has the meaning given the term in section 235(b)(1 )(E) of the 

INA (8 U.S.C. 1225(b)(1)). 

(b) "Southern border" shall mean the contiguous land border between the United States and Mexico, 

including all points of entry. 

(c) "Border States" shall mean the States of the United States immediately adjacent to the contiguous 

land border between the United States and Mexico. 

(d) Except as otherwise noted, "the Secretary" shall refer to the. Secretary of Homeland Security. 

(e) "Wall" shall mean a contiguous, physical wall or other similarly secure, contiguous, and impassable 

physical barrier. 

(f) "Executive department" shall have the meaning given in section 101 of title 5, United States Code. 

(g) "Regulations" shall mean any and all Federal rules, regulations, and directives lawfully promulgated 

by agencies. 
246 

{h) "Operational control" shall mean the prevention of all unlawful entries into the United States, 

including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other 

contraband. 

Sec. 4. Physical Security of the Southern Border of the United States. The Secretary shall 

immediately take the following steps to obtain complete operational control, as determined by the 

Secretary, of the southern border: 

(a) In accordance with existing law, including the Secure Fence Act and IIRIRA, take all appropriate 

steps to immediately plan, design, and construct a physical wall along the southern border, using 

appropriate materials and technology to most effectively achieve complete operational control of the 

southern border: 

(b) Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, 

designing, and constructing of a physical wall along the southern border: 

(c) Project and develop long-term funding requirements for the wall, including preparing Congressional 

budget requests for the current and upcoming fiscal years: and 

(d) Produce a comprehensive study of the security of the southern border, to be completed within 180 

days of this order, that shall include the current state of southern border security, all geophysical and 

topographical aspects of the southern border, the availability of Federal and State resources necessary 

to achieve complete operational control of the southern border, and a strategy to obtain and maintain 

complete operational control of the southern border. 

Sec. 5. Detention Facilities. (a) The Secretary shall take all appropriate action and allocate all legally 

available resources to immediately construct, operate, control, or establish contracts to construct, 

operate, or control facilities to detain aliens at or near the land border with Mexico. 

{b) The Secretary shall take all appropriate action and allocate alt legally available resources to 

immediately assign asylum officers to immigration detention facilities for the purpose of accepting 

asylum referrals and conducting credible fear determinations pursuant to section 235(b)(1) of the INA 

(8 U.S.C. 1225(b)(1)) and applicable regulations and reasonable fear determinations pursuant to 

applicable regulations. 

(c) The Attorney General shall take all appropriate action and allocate all legally available resources to 

immediately assign immigration judges to immigration detention facilities operated or controlled by the 

Secretary, or operated or controlled pursuant to contract by the Secretary, for the purpose of 

conducting proceedings authorized under title 8, chapter 12, subchapter II, United States Code. 
247 

Sec. 6. Detention for Illegal Entry. The Secretary shall immediately take all appropriate actions to 

ensure the detention of aliens apprehended for violations of immigration law pending the outcome of 

their removal proceedings or their removal from the country to the extent permitted by law. The 

Secretary shall issue new policy guidance to all Department of Homeland Security personnel regarding 

the appropriate and consistent use of lawful detention authority under the INA, including the termination 

of the practice commonly known as "catch and release," whereby aliens are routinely released in the 

United States shortly after their apprehension for violations of immigration law. 

Sec. 7. Return to Territory. The Secretary shall take appropriate action, consistent with the 

requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 

235(b)(2)(C) of the INA (8 U.S.C. 1225(b)(2)(C)) are returned to the territory from which they came 

pending a formal removal proceeding. 

Sec. 8. Additional Border Patrol Agents. Subject to available appropriations, the Secretary, through 

the Commissioner of U.S. Customs and Border Protection, shall take all approprlate.action to hire 

.5,QQP.I'!d!Jillql)~);~oh:J~r;f:1~lr~l;~ge't\I~1·!'1hd ~~f<~RRtoR@te a9)ionto.ensuretl1at §lichiag!!'ctl§''~~~n~r;P:h; 

·~~~~l~~aJ!r~~l19:l~~f1~~Q:~;\9l~l~!I~6Wl:l!~~91ili.i~~;jij''fit?~fi9~9!~;, 

Sec. 9. Foreign Aid Reporting Requirements. The head of each executive department and agency 

shall identify and quantify all sources of direct and indirect Federal aid or assistance to the Government 

of Mexico on an annual basis over the past five years, including all bilateral and multilateral 

development aid, economic assistance, humanitarian aid, and military aid. Within 30 days of the date 

of this order, the head of each executive department and agency shall submit this information to the 

Secretary of State. Within 60 days of the date of this order, the Secretary shall submit to the President 

a consolidated report reflecting the levels of such aid and assistance that has been provided annually, 

over each of the past five years. 

Sec. 10. Federal-State Agreements. It is the policy of the executive branch to empower State and 

local law enforcement agencies across the country to perform the functions of an immigration officer in 

the interior of the United States to the maximum extent permitted by law. 

(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with 

the Governors of the States, as well as local officials, for the purpose of preparing to enter into 

agreements under section 287(g) of the INA (8 U.S.C. 1357(g)). 

(b) To the extent permitted by law, and with the consent of State or local officials, as appropriate, the 

Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or 

otherwise, to authorize State and local law enforcement officials, as the Secretary determines are 

qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, 

apprehension, or detention of aliens in the United States under the direction and the supervision of the 
248 

Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of 

these duties. 

(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) 

of the INA in the manner that provides the most effective model for enforcing Federal immigration laws 

and obtaining operational control over the border for that jurisdiction. 

Sec. 11. Parole, Asylum, and Removal. It is the policy of the executive branch to end the abuse of 

parole and asylum provisions currently used to prevent the lawful removal of removable aliens. 

(a) The Secretary shall immediately take all appropriate action to ensure that the parole and asylum 

provisions of Federal immigration law are not illegally exploited to prevent the removal of otherwise 

removable aliens. 

(b) The Secretary shall take all appropriate action, including by promulgating any appropriate 

regulations, to ensure that asylum referrals and credible fear determinations pursuant to section 

235(b)(1) of the INA (8 U.S.C. 1125(b)(1)) and 8 CFR 208.30, and reasonable fear determinations 

pursuant to 8 CFR 208.31, are conducted in a manner consistent with the plain language of those 

provisions. 

(c) Pursuant to section 235(b)(1)(A)(iii)(l) of the INA, the Secretary shall take appropriate action to 

apply, in his sole and unreviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the 

INA to the aliens designated under section 235(b)(1)(A)(iii)(ll). 

(d) The Secretary shall take appropriate action to ensure that parole authority under section 212(d)(5) 

of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain 

language of the statute, and in all circumstances only when an individual demonstrates urgent 

humanitarian reasons or a significant public benefit derived from such parole. 

(e) The Secretary shall take appropriate action to require that all Department of Homeland Security 

personnel are properly trained on the proper application of section 235 of the William Wilberforce 

Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) and section 462(g)(2) of the 

Homeland Security Act of 2002 (6 U.S.C. 279(g)(2)), to ensure that unaccompanied alien children are 

properly processed, receive appropriate care and placement while in the custody of the Department of 

Homeland Security, and, when appropriate, are safely repatriated in accordance with law. 

Sec. 12. Authorization to Enter Federal Lands. The Secretary, in conjunction with the Secretary of the 

Interior and any other heads of agencies as necessary, shall take all appropriate action to: 
249 

(a) permit all officers and employees of the United States, as well as all State and local officers as 

authorized by the Secretary, to have access to all Federal lands as necessary and apprciprfate to 

irr]plament thls.order; and~ 

'<~J,~i:i~~~~\~l1'9~~~lli~~~~f~il~.t~iilWIC!~~~,~~91;r~~~t!nJ.t~ca1~l~t~Wii.~~'well:a~allqtial@~·~iiCI·I6i:!lf~ifi8~·rs'·!i5' 

:E~~!illi!~i~e~:~Ylh~:~iRfcf~l!i!iY?t~p~iform s!lch·e~~;;tlons on Fed¢ral .. le~nds as the "Sacr'etary daams 

ne&lssary end appropriate to implement this order. 

Sec. 13. Priority Enforcement. The Attorney General shall take all appropriate steps to establish 

prosecution guidelines and allocate appropriate resources to ensure that Federal prosecutors accord a 

high priority to prosecutions of offenses having a nexus to the southern border. 

Sec. 14. Government Transparency. The Secretary shall, on a monthly basis and in a publicly 

available way, report statistical data on aliens apprehended at or near the southern border using a 

uniform method of reporting by all Department of Homeland Security components, in a format that is 

easily understandable by the public. 

Sec .. 15, ReportJng.i. ri;xc;'ept i:\s otbe!Wi~e provided in this ·order,,itfa Secretary; \\'ithin90.daya!ofi~\ 

date bf:thls:orderi'~ncl<tha Attorney GEmaral,,wlthln 180 days, shall each submit io.the Presidenf!l' 

reporton.the prog.ress of the directives contained in this order. 

Sac. 16. Hiring. The Office of Personnel Management shall take appropriate action as may be 

necessary to facilitate hiring personnel to implement this order. 

Sec. 17. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: 

(i) the authority granted by law to an executive department or agency, or the head thereof; or 

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, 

administrative, or legislative proposals. 

(b) This order shall be implemented consistent with applicable law and subject to the availability of 

appropriations. 

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, 

enforceable at law or in equity by any party against the United States, its departments, agencies, or 

entities, its officers, employees, or agents, or any other person. 

THE WHITE HOUSE, 

January 25, 2017. 

DONALD J. TRUMP 
250 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

From Senator Claire McCaskill 

"Cutting Through the Red Tape: Oversight of Federal fnstructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

USACE Response 

Attachment B 

IAA HSBP1017X00059 

Modification POOOOI 
251 

Page 1 of 4 

DEPARTMENT OF HOMELAND SECURITY 

U.S. CUSTOMS AND BORDER PROTECTION 

INTERAGENCY AGREEMENT 

(IAA) 

04/11/2017 

Ayuncy Nwno: 

Offico/DlVision: 

POC: 

Address: 819TAYI OR ST RM 3A14 

FTWORTH TX 76102~0300 

POC Phone No.: 

. Scope of Work 

The purpose of Modification POOOOl is to <Jdd funding in the amount $339,000,000.00 for fkpi<JccmcntFC'ncc and nGV Gates. As a rcsu1~ thE' 

f()l!owing channe;; are bPin!] incorporated: 

! 1 )An an1ount of $290,500,000.00 i~ obliy<~ted fur Rep!dternent FenLe (Fundt>U Line ltem 1120). 

2} An <Jmount of $48,500,000.00 h obligated for RGV Giltes {rundcd line Item #30). 

3) T ot.;l amount oblig<ltcd for Modiflciltion P00001: $339,000,000.00 

4llnt<l! obligiltf'd nmounl for lAA HSRPl 017X0(105q i<> increased from S 11,500,000.00 by $339,000,000.00 to $350,500,000.00. 

Delivery/Shipping Schedule 

=..ef• Attached Delivery Schedule 

Requesting Agency TAS No. 

10 ____ 07020152017_0533000 

20 - 07020172021_0532000_ 

30 __ 07020172021_0532000_ 

20 

30 

__ 00000000 _3132 ___ _ 

_ __ 00000000_ 3132_,_, 

CBP Form 236 (1 0/13) 
252 

16. Invoice/Payment Method 

O Requesting Agency Initiate \PAC 

0 Servicing Agency Initiate IPAC 

O Credit Card 

17. Billing Frequency 

0 Monthly 

0 Quarterly 

O Semi-annually 

0 Annual 

Page 2 of4 

O Other (explain below) 0 Advanced Payment (explain below) 

0 Other (explain below) 

-------------------------------L---~====~============~~ 16. Requesting Agency Accounting and Appropriation Data 

10 6999.3211 USCSGLCS09420632DOZ2WQ15463SB031101AGOO BPE75321 1 

TAS# 07020152017 0533 20 6999.3211 USCSGLCS0942063200Z2WQ17562A8200000AGOO BPE763211 

TAS# 07020172021 0532 

30 6999.321 1USCSGLCS0942063200Z2W017562AB200000AGOO BPE77321 1 

TAS#07020172021 0532 

L ___ _ 

CBP Form 236 (10/13) 
253 

CBP Form 236 (1 0113) 
254 

DEPARTMENT OF HOMELAND SECURITY 

U.S. CUSTOMS AND BORDER PROTECTION 

INTERAGENCY AGREEMENT 

(IAA) 

INSTRUCTIONS 

Block 1: Jnse11IAA number (automatic system populated). 

Block 2: Insert modification number of the IAA (automatic system populated). 

Block 3: Insert IAA order number (automatic system populated). 

Block 4: Insert IAA requisition number (automatic system populated). 

Block 5: Insert period of performance for the IAA. 

Block 6: Insert statutory authority for the IAA. 

Block 7: Insert date the IAA was prepared (automatic system populated). 

Block 8: Insert requesting agency information. 

Block 9: Insert servicing agency information. 

Page 4 of 4 

Block 10: Insert a brief description of the IAA requirements (scope of work) and list the applicable attachments in this 

block. At a minimum, the attachments should include the IAA terms and conditions, statement of work, and analysis of 

alternative, if applicable. 

Block 11: Insert the delivery and/or shipping schedule for the IAA or indicate where the delivery/shipping schedule may 

be found. 

Block 12: Insert the base price of the JAA, modification amount, assisted acquisition servicing fee, and totaiiAA price--

automatic system populated. 

Block 13: Insert the billing and payment information for the requesting and servicing agency (requesting agency 

information automatic system populated). 

Block 14: Insert the requesting agency TAS number for each line item (automatic system populated). 

Block 15: Insert the servicing agency TAS number for each line item (automatic system populated). 

Block 16: Check the invoice/payment method for the IAA and explain if "other" is selected. 

Block 17: Check the billing frequency for the IAA and explain if "advanced payment" or "other" is selected. 

Block 18: Insert the requesting agency accounting and appropriation data per line item (automatic system populated). 

Block 19: Insert !AA approval information for the requesting and servicing agency pertaining to program officials, 

funding officials, and contracting officers. Include the dale for each signature. 
255 

Date: June 2. 2017 

TO: -

Contracting: Officer 

Procurement Directorate 

U.S. Customs & Border Protection 

FROM: 

SUBJECT: 

Border Patrol & Air and Marine 

Program Management Office 

Request for ]l.fodi!ication- HSBP1017X00059 

The Border Patrol & Air and Marine Program Management Otlice (BPAM PMO) requests a 

uwdif]cation to the IAA. for HSBP l 0 17X00059 (PR 20097828), as follows: 

I) Add additional tlmding in the amount of$339.000.000.00. Additional tlmding is to be 

used for replacement fence projects in El Centro Sector, San Diego Sector. El Paso Sector 

as well as gates in Rio Grande Valley Sector. All work is covered within the existing 

SOW as shown in the "FY17 & FY!8 IAA Wall Funding" table on page 5 of the SOW, 

replacement fence is covered under section 2.4 and gates under section 2.8. This tlmding 

lws been added to PR 20097828 on multiple lines as follows: 

Thank you. 

$290.500,000.00 online 20 for Replacement Fence. 

$48.500,000.00 online 30 for Gates. 

Program Management Office 
256 

Attachment "A" 

Summary of FY17 PC&I Funding 

Attachment A IAA 1017XOOOS9 Mod 1 6/02/2017 
257 

CEMP-CN 

DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS 

441 G STREET, NW 

WASHINGTON, D.C. 20314-1000 

12 June 2017 

MEMORANDUM FOR Southwestern Division Director for Border Infrastructure PMO 

and Fort Worth District Resource Management Office 

SUBJECT: Customer Order Funding Guidance for Customs and Border Patrol 

1. Fort Worth District (SWF) is authorized to load the attached IAA Modification 

(HSBP1 017X00059 P0001) in CEFMS for the increased amount of $350.500.000.00. 

2. A funding Directive will follow that provides SWF the authority to undertake the 

activities detailed in the attached SOW in support of the U.S. Border Wall U.S. Customs 

and Border Protection (CBP). 

3. Please contact me at 

have any questions. 

Enclosures 

1. IAA HSBP1 017X00059 P0001 

2. Border Barrier Systems IAA SOW 

Mod P0001 

• ••• ifyou 

_,_gram Manager 

Interagency and International Services 

HQUSACE 
258 

Post-Hearing Questions for the Record 

Submitted to Robyn S. Colosimo 

From Senator Claire McCaskill 

"Cutting Through the Red Tape: Oversight of Federal lnstructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

USACE Response 

Attachment C 

IAA HSBP I 0 17X00059 

Modification P00002 
259 

DEPARTMENT OF HOMELAND SECURITY 

U.S. CUSTOMS AND BORDER PROTECTION 

INTERAGENCY AGREEMENT 

DHS- luston1s & Border Protection Customs and Uorde1 Protection 

1300 rcnnsylvanin Ave, NW 

ProntrPmPntDirrctnrt~tfl NP 1110 

(IAA) 

Agency Name: 

Olfic£J/D!vision· 

!-'OC: 

04/11/2017 

Address: f319TAYLO~ STnM 3A14 

Page 1 of 4 

Wo~~hington DC 20279 FTWORTH TX 76102-0300 

roc Phono No.: 

0. Scope of Work 

I he purpose of Modification POU002 is to odd funding m the amount $743,000.00 for Border Barrier Systems rcqu!rernen!s (see lA A SOW for 

dr.tdlb), As a re~ult, :he fo!1owin9 \hilnges are being Incorporated 

l)An <Jmount of $743,000.00 Is ob!lgated for Borrlf'f Bmrier SystPms rPquirrtnPnts (f-unded Ltne Item 1140). 

J) To:ai amount obliqnted for Modification P00002: $7<13,000.00 

3)Totill obligated amount for IAA HSOP1017X000~9 is incret~sed f1om $350,500,000.00 by $"143;C)Q0.00 to $351,243,000.00 . 

. Delivery/Shipping Schedule 

~et> Attarhrd Delivery Schedule 

PDC: 

$351,243,000.00 ~gg :~~~· # 

POC Email 

14. Requesting Agency TAS No. 

10 07020152017 _0533000_ 

20 

30 

40 

___ 07020172021_ 0532000_ 

__ 07020172021 0532000_ 

. 07020152017_0533000_ 

5. Servicing Agency TAS No. 

10 ___ 00000000 __ 3122 _ 

20 ____ 00000000_3122 

30 -- __ 00000000_3122_. 

40 ___ 00000000_3122 

CBP Form 236 (10/13) 
260 

l

<:lnvoice/PaymenfMethod 

0 Requesting Agency Initiate IPAC 

0 Servicing Agency Initiate I PAC 

O Credit Card 

17. Billing Frequency 

0 Monthly 

0 Quarterly 

0 Semi-annually 

0 Annual 

Page 2 of4 

0 Other (explain below) 0 Advanced Payment (explain below) 

0 

1 B. Requesting Agency Accounting and Appropriation Data 

10 6999.3211USCSGLCS0942063200Z2WQ15463SB031101AGOO BPE753211 

TAS# 07020152017 0533 20 6999.3211 USCSGLCS0942063200Z2W017562AB200000AGOO BPE763211 

TAS# 07020172021 0532 

30 6999.3211 USCSGLCS0942063200Z2WQ17562AB200000AGOO BPE773211 

TAS# 07020172021 0532 40 6999.3211 USCSGLCS0942063200Z2W015463S8031101AGOO BPE753211 

TAS# 07020152017 0533 

CBP Form 236 (10/13) 
261 

Page 3 of 4 

Requesting Agency 

litlo Branch Chief- Financial Management £ludget0fficer 

Telephone No. 

Fax No. 

ErnaU 

S1gnature 

CBP Form 236 (10/13} 
262 

DEPARTMENT OF HOMELAND SECURITY 

U.S. CUSTOMS AND BORDER PROTECTION 

INTERAGENCY AGREEMENT 

(IAA) 

INSTRUCTIONS 

Block 1: Insert IAA number (automatic system populated). 

Block 2: Insert modification number of the IAA (automatic system populated). 

Block 3: Insert IAA order number (automatic system populated). 

Block 4: Insert IAA requisition number (autometlc system populated). 

Block 5: Insert period of perfonmance for the IAA. 

Block 6: Insert statutory authority for the IAA. 

Block 7: Insert date the IAA was prepared (automatic system populated). 

Block 8: Insert requesting agency information. 

Block 9: Insert servicing agency information. 

Page 4 of 4 

Block 1 0: Insert a brief description of the IAA requirements (scope of work) and list the applicable attachments In this 

block. At a minimum, the attachments should include the IAA terms and conditions, statement of work, and analysis of 

alternative, if applicable. 

Block 11: Insert the delivery and/or shipping schedule for the IAA or indicate where the delivery/shipping schedule may 

be found. 

Block 12: Insert the base price of the IAA, modification amount, assisted acquisition servicing fee, and totaiiAA price--

automatic system populated. 

Block 13: Insert the billing and payment information for the requesting and servicing agency (requesting agency 

information automatic system populated). 

Block 14: Insert the requesting agency TAS number for each line Item (automatic system populated). 

Block 15: Insert the servicing agency TAS number for each line item (automatic system populated). 

Block 16: Check the Invoice/payment method for the IAA and explain if "other" is selected. 

Block 17: Check the billing frequency for the IAA and explain if "advanced payment' or "other" is selected. 

Block 18: Insert the requesting agency accounting and appropriation data per line Item (automatic system populated). 

Block 19: Insert IAA approval Information for the requesting and servicing agency pertaining to program officials, 

Funding officials, and contracting officers. Include the date for each signature. 

CBP Form 236 (10/13) 
Attachment D USACE Support to CBP Border Infrastructure 

2-0ct-17 

# Action Location IAA 

1 Prototype Support Otay Mesa, CA HSBP1017X00059 

2 RGV~01, 2.9 mi Levee Wall Santa Ana NWR, TX HS8Pl017XOOOS9 

HSBP1017X00059 

3 RGV-Q2, 7.9 mi levee Wall Hidalgo Co, TX 

HSBP1017XOOOS9 

4 RGV-Q3, 10.8 mi Levee and Non- HSSP1017XOOOS9 Hidalgo Co, TX levee Wall 

HSBP1017XOOOS9 

5 RGV-04, 11.2 mi Levee Wall Hidalgo Co, TX HSBP1017X00059 

HSBP1017X00059 

6 RGV Planning, Hidalgo County Hidalgo Co, TX HSBP1017X00059 

7 RGV-QS, 2.2 mi Non-levee Wall Starr Co, TX HSSP1017X00059 

HSBP1017X00059 

8 RGV Planning, Starr County Starr Co, TX - ... 

HSBP1017X00059 

9 SOC 14 mi Secondary Wall San Diego Co, CA HSBP1017X00059 

Contractor 

Name 

Horizon Surveys LLC 

Michael Baker International 

Michael Baker International 

0 1Brien 

Michael Baker International ·p;;~~e-· Michael Baker International 

EJES 

Premier Land Services 

Michael Baker International 

Michael Baker International ~------ -·----~---~ Premier Land Services 

Michael Baker International 

Page 1 of 1 

Contract Scope of Work DUNS Amount($) 

78825708 $6,900.00 

Stake the northern boundary fine of Federally own

#703. In support of Prototype construction effort 

182698449 $3,702,734.49 

Conduct surveys, 100% Design and prepare solicita

documents 

182698449 

Included in Conduct surveys 

RGV-01 award 

0790794960 $302,450.20 Prepare 35% design and solidtation documents 

182698449 

Included in Conduct surveys 

RGV-01 award lc·· ·· ·· · ·· ·· - -

078373181 .. $621,74991 Prepare 35% design and solicitation documents 

182698449 

Included in Conduct surveys 

RGV-01 award 

007334761 $807,811.78 Prepare 35% design and solicitation documents 

795432272 $417,644.46 Identify landowners, provide title abstracts, provid

evidence 

182698449 

Included in Conduct surveys, 35% Design and prepare soHcitat

RGV-01 award documents 

Included in Conduct surveys 182698449 RGV~laward ~-~------- ---- ·-- -------~-~ --

795432272 $3,000,000.00 Identify landowners, provide title abstracts, provid

evidence 

182698449 $435,349.32 

Conduct surveys, 35% Design and prepare solicitat

documents 
264 

United States Department of the Interior 

OFFICE OF THE SECRETARY 

The Honorable Rob Portman 

Chairman 

Washingron, DC 20240 

CL:C - 1 2017 

Permanent Subcommittee on Tnvestigations 

Committee on Homeland Security and Governmental Affairs 

United States Senate 

Washington, D.C. 20510 

Dear Chairman Portman: 

Enclosed are responses prepared by the U.S. Fish and Wildlife Service to questions submitted 

following the Subcommittee's July 12, 2017 oversight hearing examining the federal permitting 

process for major infrastructure projects. 

Thank you for the opportunity to provide this material to the Subcommittee. 

Enclosure 

cc: The Honorable Tom Carper 

Ranking Member 

f' ,l' Je?if\1 

Christo Iotti 

Legis alive Counsel 

Office of Congressional and Legislative Affairs 
265 

Questions for the Record 

Submitted to Gary Frazer Assistant Director for Ecological Services 

U.S. Fish and Wildlife Service 

"Cutting through the Red Tape: Oversight of Federal Infrastructure Permitting and the 

Federal Permitting Improvement Steering Council" 

September 7, 2017 

From Chairman Rob Portman 

Please provide policies regarding and examples of how your headquarters are 

communicating the FAST-41 requirements to your field offices. 

RESPONSE: 

The U.S. Fish and Wildlife Service (Service) headquarters has used a variety of mechanisms to 

actively communicate about FAST -41 and its requirements to our Regional and Field Offices. 

We designated a national lead point-of-contact (POC) who has worked with Service leadership 

and our field and regional staff to share information about and implement the FAST-41 

requirements. This includes disseminating FAST-41 materials; providing updates and question 

and answer sessions during monthly calls with regional counterparts; working one-on-one with 

regional and field staff to help educate them on FAST-41's requirements; and hosting a national 

webinar on FAST -41, among other activities. Specific examples include: 

• July 2016- September 2017: The POC provided information via multiple conferen~e 

calls and emails regarding FAST -41 implementation, the Permitting Dashboard, and the 

Federal Permitting Improvement Steering Council's January 13,2017 Guidance 

Document and January 18,2017 Best Management Practices document to an expanded 

list of the regional coordinators and field staff tasked with FAST-41 and other 

environmental review responsibilities. 

• September 28,2017: Headquarters staff hosted an hour-long video conference on FAST41 and related infrastructure initiatives (Executive Order 13807 and Secretarial Order 

3355) for Service employees across the country. Headquarters staff presented information 

on the initiatives, recommended best practices for coordination, and answered 

employees' questions. 

From Ranking Member Tom Carner 

In May, the EPW Committee heard from Leah Pilconis of the Associated General 

Contractors, that better shared databases on natural resources, and other such tools could 

help improve coordination between agencies. Do you agree that this could be helpful, and 

are there other digital tools or technologies that could help agencies review projects more 

quickly and effectively? 

RESPONSE: Yes. The Service is building efficiencies into our review and permitting processes 

to improve and expedite review consideration for many projects. For example, our Information 

for Planning and Consultation (IPaC) online platform allows project applicants to quickly and 
266 

easily identify Service-managed resources that may be affected by a project (e.g., threatened and 

endangered species or National Wildlife Refuges) and, in some cases, seek concurrence that a 

project is not likely to adversely affect threatened and endangered species or is consistent with a 

programmatic Endangered Species Act (ESA) consultation. Other streamlining tools and 

efficiencies include recent Service guidance for expediting ESA consultations for certain 

restoration and recovery projects; increased use of programmatic consultations that address 

multiple projects; and large-scale Habitat Conservation Plans that allow for the efficient 

permitting of numerous individual projects within a geographic area. 

One goal of the refonns we're discussing today is to encourage agencies to review projects 

they have a role in vetting concurrently to the maximum extent possible so that necessary 

reviews take less time. What progress has the Council made since it began its work in 

achieving this goal? What obstacles might prevent agencies from coordinating their work 

so that reviews can be done at the same time rather than back to back? 

RESPONSE: The Federal Permitting Improvement Steering Council (Council) issued guidance 

and best practices for environmental reviews and authorizations in January of2017. In addition, 

the Council has issued quarterly assessment reports on each covered project, which provides 

each agency with information on the progress made to date on the projects and needed 

improvements. Historically, the agencies were not always aware of individuals in other agencies 

working on the same project, and this lack of awareness created an obstacle to communication. 

This problem has been addressed by the Council's Permitting Dashboard (an online tool for 

Federal agencies, project developers, and interested members of the public to track the Federal 

government's environmental review and authorization processes for large or complex 

infrastructure projects), which inclu'des contact information for each of the agencies and has 

improved project-level communication. 

Earlier this year, the Inspector General at the U.S. Department of Transportation reported 

that DOT had implemented just over half of its planned actions from MAP-21 to accelerate 

projects, and that the FAST Act changes delayed the benefits of some already-implemented 

actions. Would you agree that legislative uncertainty and implementation delays can hinder 

our ability to achieve intended benefits, such as accelerating project delivery and reducing 

project costs? 

RESPONSE: As a general rule, legislative uncertainty and implementation delays can hinder 

our ability to achieve intended benefits. However, we are not aware of any specific 

circumstances related to legislative uncertainty or delay that have affected implementation of 

FAST-41 within the Service. 

Our witness on the first panel from the Natural Resources Defense Council argued that 

infrastructure projects are often held up not because of federal environmental reviews, but 

because of lack of funding or state and local laws and zoning requirements. When it comes 

to the latter, I understand that state and local governments are permitted but not required 

to participate in the Federal Permitting Improvement Steering Council's work. It seems to 

me that there would be some value in having state and local governments participating as 

much as possible given the role they play in getting a project off the ground. What are 
267 

your thoughts on state and local participation when it comes to coordinating permitting 

and other reviews and how can we and the Council encourage it? 

RESPONSE: Environmental reviews and authorizations result in better outcomes and often 

proceed more quickly when all stakeholders are engaged early in the project design and review 

process. For example, early coordination that includes relevant state and local governments helps 

ensure that project sponsors are not asked or required to implement contradictory measures. The 

best way the Federal Permitting Improvement Steering Council can encourage local and state 

participation in coordinating permitting and other reviews is through information sharing and 

communication. Local and state governments need to be able to see how re-directing resources to 

increase coordination will result in better outcomes and benefit their communities. 

One of the main responsibilities given to the Federal Permitting Improvement Steering 

Council is to maintain the Permitting Dashboard that shows schedules and other 

information for agencies' consideration of major projects. What benefits can this 

transparency bring, and what steps can be taken to improve the Dashboard and the quality 

of information published on it? 

RESPONSE: The Permitting Dashboard provides other agencies, as well as project sponsors, an 

awareness of the permitting and other review processes required for a particular project or 

location. In addition, the Dashboard provides contact information for the project sponsors and 

agency POCs, facilitating communication among all of the project stakeholders. 

The Service suggests two potential steps to increase the quality of information on the Permitting 

Dashboard: (I) increased coordination by agencies submitting data to the Permitting Dashboard; 

and (2) increased collaboration between the Service and the Federal Permitting Improvement 

Steering Council regarding appropriate milestones to track on the Permitting Dashboard. 

This hearing has focused on the risks and uncertainties for projects prior to being built, 

which is important. However there can also be risks to infrastructure once it is built, 

particularly in low-lying areas that may see impacts from sea level rise. How do you believe 

that public agencies and project sponsors should be integrating climate change projections 

and sea level rise into project reviews? 

RESPONSE: The Service recommends that public agencies and project sponsors use the best 

available scientific information when planning, reviewing, and implementing projects. 

As we consider the potential for FAST-41 to improve the permitting process for an array of 

infrastructure projects, I believe we should pay particular attention to those projects that 

protect, restore, and enhance our natural infrastructure. Several projects currently 

covered under FAST-41 involve significant ecological restoration and resiliency 

components, including projects in areas ravaged by previous storms and hurricanes. One 

of these- the Mid-Barataria Sediment Diversion in Louisiana- is specifically designed 

to, among other things, re-establish natural processes needed to build wetlands and reverse 

habitat losses on the lower Mississippi River. So delays on a project like this could have 
268 

severe ecological consequences. Can you offer your perspective on opportunities we might 

have to expedite projects like this under FAST -41? 

RESPONSE: Inclusion as a covered project under FAST-41 provides a variety of opportunities 

to expedite project reviews. For example, the increased early coordination associated with 

FAST-41 will help ensure that potential issues are identified early in the process, thereby 

avoiding potential delays. As another example, inclusion of the project on the Permitting 

Dashboard will provide an awareness of the various permitting and other review processes, as 

well as a mechanism for accountability. 

From Senator Steve Daines 

Mr. Frazer, thank you for testifying. I am engineer by trade. I am not a career politician, 

rather an engineer who spent 28 years in the private sector identifying and fixing 

inefficiencies. 

As we work towards President Trump's goal of a one trillion dollar infrastructure package, 

a surefire way to make the American taxpayers dollars go farther is to eliminate 

redundancies and streamline the Federal permitting process. 

Mr. Frazer, you mentioned that the Fish and Wildlife service is currently participating in 

numerous FAST-41 projects across all of your service regions. How successful has FAST41 been in streamlining the review process and are there any areas in which you would 

recommend improvement? 

RESPONSE: FAST-41 is well positioned to deliver enhanced communication, coordination, 

transparency and accountability for covered projects, providing an effective framework for 

streamlining envirorunental reviews and authorizations. The increased early coordination 

associated with FAST-41 will help ensure that potential issues are identified early in the process, 

thereby avoiding potential delays. Additionally, inclusion of a project on the Permitting 

Dashboard will provide an awareness of the various permitting and other review processes, as 

well as a mechanism for accountability. However, FAST-41 is relatively new and to recommend 

specific improvements at this time is premature. 

The Service is currently a participating or cooperating agency in 22 covered projects "in 

progress" on the FAST-41 Permitting Dashboard (see attached list). 

From our limited experience working on FAST-41 covered projects, the Service suggests two 

potential steps to increase the quality of information on the Permitting Dashboard: (I) increased 

coordination by agencies submitting data to the Permitting Dashboard; and (2) increased 

collaboration between the Service and the Federal Permitting Improvement Steering Council 

regarding appropriate milestones to track on the Permitting Dashboard. 
269 

Æ 

"IN PROGRESS' FAST-41 PROJECTS WITH CURRENT SERVICE 

PARTICIPATION OR COOPERATION 

Alaska LNG Project 

Atlantic Coast Pipeline, Atlantic Coast Pipeline Amendment, Supply Header, and ACP· 

Piedmont Lease Project 

Boardman to Hemingway Transmission Line Project 

Cardinal Hickory Creek Transmission Line Project 

Chokecherry-Sierra Madre Wind Energy Project 

Denbury Riley Ridge to Natrona C02 Pipeline Project 

Desert Quartzite Solar Energy Project 

Gateway West Segments 8 & 9 Transmission Line Project 

Gulf LNG Liquefaction Project 

Jordan Cove LNG Terminal and Pacific Connector Gas Pipeline Project 

Liberty Development and Production Plan 

Mid-Barataria Sediment Diversion Project 

Mountain Valley and Equitrans Expansion Project 

Penn East Pipeline Project 

Plains and Eastern Clean Line Transmission Project 

R.C. Byrd Project 

Swan Lake North Pumped Storage Project 

Ten West Link Transmission Line Project 

Tennessee Gas Abandonment and Capacity Restoration Project 

Transwest Express Transmission Line Project 

Venture Global Calcasieu Pass Terminal and TransCameron Pipeline Project 

WB Xpress Pipeline Project