U.S. GOVERNMENT PUBLISHING OFFICE

31–410 PDF WASHINGTON : 2018

S. Hrg. 115–334 

FAST–41 AND THE FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL: PROGRESS TO 

DATE AND NEXT STEPS 

ROUNDTABLE 

BEFORE THE

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JUNE 27, 2018 

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 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

KAMALA D. HARRIS, California 

DOUG JONES, Alabama 

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 

HEIDI HEITKAMP, North Dakota 

GARY C. PETERS, Michigan 

MAGGIE HASSAN, New Hampshire 

ANDREW DOCKHAM, Staff Director and Chief Counsel 

JOHN KILVINGTON, Minority Staff Director 

KATE KIELCESKI, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

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

Senator McCaskill ............................................................................................ 3 

Senator Harris .................................................................................................. 24 

Prepared statement: 

Senator Portman .............................................................................................. 33 

WITNESSES 

WEDNESDAY, JUNE 27, 2018 

Alexander Herrgott, Associate Director for Infrastructure, Council on Environmental Quality ................................................................................................ 4 

Angela Colamaria, Acting Executive Director, Federal Permitting Improvement Steering Council ......................................................................................... 7 

Joseph Johnson, Ph.D., Executive Director, Federal Regulatory Process Review and Analysis, Environment, Technology, and Regulatory Affairs, U.S. 

Chamber of Commerce ......................................................................................... 9 

Christy Goldfuss, Senior Vice President, Energy and Environment Policy, 

Center for American Progress ............................................................................. 10 

Sean McGarvey, President, North America’s Building Trades Union ................ 12 

Hon. Mary L. Landrieu, Senior Policy Advisor, Van Ness Feldman, LLP; 

Accompanied by Megan K. Terrell, Legal Advisor, Coastal Activities, Environment and Natural Resources Office of the Governor of Louisiana ............. 14 

Jolene S. Thompson, Executive Vice President, Member Services and External 

Affairs, American Municipal Power, Inc. ........................................................... 16 

ALPHABETICAL LIST OF WITNESSES

Colamaria, Angela: 

Testimony .......................................................................................................... 7 

Prepared statement .......................................................................................... 38 

Goldfuss, Christy: 

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

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

Herrgott, Alexander: 

Testimony .......................................................................................................... 4 

Prepared statement .......................................................................................... 35 

Johnson, Joseph, Ph.D.: 

Testimony .......................................................................................................... 9 

Prepared statement .......................................................................................... 42 

Landrieu, Hon. Mary L.: 

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

Prepared statement .......................................................................................... 56 

McGarvey, Sean: 

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

Prepared statement .......................................................................................... 51 

Thompson, Jolene: 

Testimony .......................................................................................................... 16 

Prepared statement .......................................................................................... 59 

APPENDIX 

Statements submitted for the Record from: 

Marc S. Gerken, PE, CEO/President, American Municipal Power, Inc. ...... 77 

Coastal Protection and Restoration Authority ............................................... 93 
Page

IV 

Responses to post-hearing questions for the Record from: 

Ms. Colamaria ................................................................................................... 103 
(1) 

1The prepared statement of Senator Portman appears in the Appendix on page 33. 

ROUNDTABLE ON FAST–41 AND THE 

FEDERAL PERMITTING IMPROVEMENT 

STEERING COUNCIL: PROGRESS TO DATE 

AND NEXT STEPS 

WEDNESDAY, JUNE 27, 2018 

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 2:34 p.m., in room 

106, Dirksen Senate Office Building, Hon. Rob Portman presiding. 

Present: Senators Portman, McCaskill, Peters, and Harris. 

OPENING STATEMENT OF SENATOR PORTMAN1

Senator PORTMAN. All right, we are going to get going. 

Senator McCaskill I know has three things going on at once, as 

do all of us, and yet we have something really important to talk 

about today so we are delighted you are here. We may have other 

colleagues who come in and out. Everybody is busy today. It is kind 

of crazy. I guess I need to do this. 

[Pounds gavel.] 

I just love doing that. 

First of all, you know why we are here. We are here to talk about 

Federal permitting, and this is, I think, a great story, what we 

have accomplished so far with very little resources, too little in my 

view, and with a permanent executive director. I think the Obama 

Administration was slow to get it started. I think the Trump Administration has not been aggressive enough in permitting a permitting reform executive director to be permanent. I think Congress has not provided adequate funding. But notwithstanding all 

that, we have made real progress and we are going to continue to 

do so. 

This issue affects everything. It affects the roads we drive, the 

bridges we cross, the airports we use, the infrastructure projects, 

including environmental projects, which we will hear about today, 

that are important, and the electricity that we use. It is all about 

infrastructure. 

Right now the system, as we have heard from our constituents 

constantly, takes too long. It is complicated, sometimes very bureaucratic. Those delays have real costs. They have costs in terms 
2 

of money, in terms of jobs, in terms of safety, in terms of the ability 

for the private sector to invest as well as the public sector, and 

often it is a matching investment. It is an opportunity to say as we 

improve infrastructure and maybe do something exciting later this 

year on legislation, let us be sure that the permitting part of this 

is fixed. That way the Federal dollar will go even further toward 

doing what everybody wants to do, I hope, to create more jobs and 

more economic activity through better infrastructure. 

Five years ago, actually, probably 7 years ago, Senator McCaskill 

and I started in on this project, and about 21⁄2 years ago we passed 

legislation. That was in 2015, and it is called Fixing America’s Surface Transportation (FAST–41), because it was part of the FAST 

Act, Title 41. FAST–41 tries to streamline the permitting process 

and it focuses on the largest infrastructure projects. We call them 

covered projects. For those listening today, when we talk about covered projects, those are ones that, under FAST–41, are included. 

We also created the Federal Permitting Improvement Steering 

Council (FPISC). We will hear a lot about the Council today, bringing all the permitting agencies together at the start of covered 

projects to coordinate and streamline the permitting process. I 

think we will hear some good things today about that, but also the 

need, again, for more resources. 

The law has a number of common-sense measures, encourages 

agencies to do their reviews concurrently rather than sequentially. 

That always seemed like a no-brainer to us. Let us not finish one 

of maybe a couple dozen regulatory reviews and then have to go 

to the next and the next. Let us try to do them together. 

It also requires one agency to be the lead agency. Common sense, 

this provides for some accountability, so that there is some responsibility built into the system. It also requires agencies to post a 

timeline on a public online dashboard so that project sponsors and 

the public can keep track of where they are in the permitting process, another common-sense measure that is making a big difference 

in my view, with these covered projects. 

When we first came up with this idea, and I think Senator 

McCaskill would agree with this, we had hoped it would save 

money, both by project sponsors and government, and save time. 

Based on the testimony we are going to hear today, I think it is 

safe to say that much of what we had hoped for has happened. Expectations have been met in the sense that there have been some 

significant savings in time and money. Over the past year and a 

half, the Council informs me that they have saved projects $1 billion in avoided costs. That is a pretty good start, $1 billion. We will 

hear more about that through your testimony. And we have done 

this without a permanent executive director and with a bare minimum of funding. 

I do want to take a moment to offer Acting Executive Director 

Angie Colamaria, who is with us here today at the panel, former 

Acting Executive Director and current Deputy Director Janet 

Pfleeger, who is here, and your whole team, our sincere thanks. 

You pulled together groups. I have had a chance to speak with the 

Council and seen your work first-hand. 

We need a permanent executive director. I hope that will happen 

soon. We will also continue to advocate for funding for the Council 
3 

that is adequate to be able to have enough infrastructure within 

the Council to get infrastructure moving. 

Based on our experience of the past 21⁄2 years, and listening to 

you all and talking to outside stakeholders, Senator McCaskill and 

I have now introduced follow-on legislation. It is called S. 3017. It 

is the Federal Permitting Reform and Jobs Act. The whole idea is 

to improve FAST–41 and learn the lessons, what worked, what did 

not work, and how we can make it work better. 

Most critically to me, the bill would remove the 7-year sunset in 

FAST–41. We know enough about it now to know that we should 

not be sunsetting this in 7 years. We should keep it going. It would 

also allow more projects to apply to be covered. I think that is important, including some areas like transportation and energy. You 

definitely want to be covered. 

It would set a 2-year goal for each project’s permitting process. 

By the way, if agencies determine they will need longer to permit 

a project they can explain why and what they are going to do to 

mitigate those delays. I think that 2-year goal is really important. 

The bill will allow the Permitting Council to consult on non-covered 

projects as well, to take your expertise and be able to use it for 

non-covered projects, if asked, and to help resolve conflicts. 

These are modest, smart, common-sense reforms that will build 

on the success we are already seeing. We are looking forward to 

hearing from each of the roundtable participants today about 

FAST–41’s performance so far, what you think has worked, what 

has not worked, and where we can improve the permitting process 

going forward. 

With that I would turn to my former Ranking Member on the 

Subcommittee and co-author, Senator McCaskill. 

OPENING STATEMENT OF SENATOR McCASKILL 

Senator MCCASKILL. Thank you, Senator Portman. We have been 

working on this for a long time but things do not happen around 

here quickly. Good ideas have a way of latching on, and this is a 

good idea. This is an idea that is going to make a difference in 

terms of saving taxpayers money. It is going to make a difference 

in terms of being able to get infrastructure in place in a way that 

saves local jurisdictions money and saves money for the companies 

that are willing to invest in some of these infrastructure projects. 

It is a win-win all the way around. 

I am disappointed, along with my colleague, that we do not have 

a permanent executive director. I am disappointed, since we have 

already saved $1 billion, that the President’s budget only allocated 

$1 million for the Council when we know the requirements to do 

it right would take about $10 million. That is a small amount. If 

they have managed to already save $1 billion, the potential is huge 

in terms of the amount of money that could be saved if this works 

the way it is supposed to work. 

I think my friend from Ohio will be more persuasive with this 

Administration than I will be. But we have played tag team before, 

we have handed the baton back and forth, and that is what it 

means to work in a bipartisan way. I am hopeful that we can continue to do that and get our new bill through, which will make improvements. But most importantly, make this work as robustly as 
4 

1The prepared statement of Mr. Herrgott appears in the Appendix on page 35. 

it has the potential to work, in terms of saving money and putting 

some common sense into the public sector that would match the desires of the private sector when they are more driven by a bottom 

line. 

Thank you and I will look forward to our conversations and the 

information that we get here today. 

Senator PORTMAN. Excellent. Senator Peters, who was just here, 

had to leave, may come back, and other Senators may come and 

go and we are going to be informal here so allow them to interject 

when they come in. 

We are going to hear from our participants now. Let me introduce them briefly. 

Alexander Herrgott currently serves as the Associate Director for 

Infrastructure on the Council on Environmental Quality (CEQ). 

Angela Colamaria, I already mentioned, currently serves as Acting 

Executive Director of the Federal Permitting Improvement Council. 

Joe Johnson is the Executive Director of Federal Regulatory Process Review and Analysis for Environment, Technology, and Regulatory Affairs—fit that on a business card—at the U.S. Chamber of 

Commerce. Christy Goldfuss is the Senior Vice President for Energy and Environment Policy at the Center for American Progress. 

Sean McGarvey is the President of North America’s Building 

Trades Union. 

Our former colleague, Senator Landrieu, is here. She currently 

serves as Senior Policy Advisor at Van Ness Feldman. I understand 

that Megan Terrell, Legal Advisor to Louisiana Governor John Bel 

Edwards on Coastal Activities, Environment, and Natural Resources is also on hand. Thank you for being here, Megan, to answer questions about the project. 

Finally, last but not least, we have Jolene Thompson, who is the 

Executive Vice President of Member Services and External Affairs 

for the American Municipal Power (AMP), Inc., which is the sponsor of the R.C. Byrd hydropower project in Ohio. Actually, it was 

American Municipal Power that first came to me, probably 8 years 

ago, about this permitting problem, and the difficulty of getting private investment, because the capital is not that patient. Investors 

were going somewhere else because their permitting was taking so 

long. We look forward to hearing how things are going and what 

you think about it. 

Mr. Herrgott, we will hear from you first. We are going to try to 

keep these to 5 minutes on the timer. 

TESTIMONY OF ALEXANDER HERRGOTT,1 ASSOCIATE DIRECTOR FOR INFRASTRUCTURE, COUNCIL ON ENVIRONMENTAL 

QUALITY 

Mr. HERRGOTT. Before I begin, if you will permit me a small sentimental moment. In 2015, when I was senior staff for Senator 

Inhofe negotiating the FAST Act, my father, unfortunately, passed 

away, and I rushed back to Arizona. Two days later Senator Boxer 

called me and said, ‘‘Would you please come back to the Hill’’ because the bill had been hung up on our streamlining negotiations. 

Right outside this room, Senator Boxer gave me a hug, as we 
5 

walked back in with Senate staff, and she said, ‘‘Get back to work.’’ 

I think that spirit of bipartisanship is something that Senator 

McCaskill and you, Senator Portman, have exemplified is 

something that we need to remember when we are talking about 

FAST–41 and the streamlining initiatives that the President has 

engaged in, because once we inject facts into this debate we can 

make pragmatic successes together. 

Thank you for having this hearing because I think it is an opportunity for us to show the world how we can actually turn a light 

on a process that previously has been somewhat of a black box. 

Senator Portman, Ranking Member McCaskill, thank you for the 

invitation to discuss the Federal permitting process for major infrastructure projects. I am looking forward to having a meaningful 

dialogue on the topic today as we work toward a shared goal of reducing permitting delays, providing the American people the modernized infrastructure they deserve. 

As you know, a major cause of delay in the permitting process 

for major infrastructure projects is that there are too many decisionmakers without effective cross-agency coordination or communication. Multiple Federal agencies oversee dozens of Federal statutes that project sponsors must navigate before beginning construction. Over time, this has created a redundant and often inconsistent Federal permitting process with no single framework and 

no varying times. 

We can do better. By looking at the chart behind me, you can see 

that you need a Ph.D. or you need to hire a consultant to navigate 

the 29 statutes and 5 Executive Orders (EO) that dictate a process 

just to build a highway project. For example, a highway project 

could use as many as 10 different Federal agencies involved in 16 

different permitting decisions, in addition to the State, local, and 

tribal permitting schedules. 

The result is a Federal permitting process that often takes too 

long, increases costs, and creates uncertainty. The Administration 

is actively trying to fix this problem by addressing the challenges 

while maintaining environmental protections. 

With process enhancements and common-sense, harmonized approaches among the Federal agencies, infrastructure projects will 

move through the environmental permitting process more efficiently. Federal agency coordination is imperative to long-term 

process reforms throughout the agencies. 

That is why, last August, President Trump signed Executive 

Order 13807, implementing a policy we have referred to as ‘‘One 

Federal Decision.’’ Under this policy, Federal agencies will administer the National Environmental Policy Act (NEPA) procedures so 

that a single Environmental Impact Statement (EIS) and a single 

Record of Decision (ROD) and that for all applicable permitting decisions it will conduct it concurrently with the NEPA process. One 

Federal Decision also provides that Federal agencies will seek to 

complete the environmental review process within an average of 2 

years. 

In April, President Trump announced that 11 Federal agencies 

and the Permitting Council signed a Memorandum of Understanding (MOU) where agencies agreed to an unprecedented level 

of coordination and communication in conducting their environ-
6 

mental reviews. Under this MOU, CEQ, in coordination with other 

White House components, has convened a Federal agency working 

group to develop the framework under which the Permitting Council and other agencies will implement this Executive Order. The 

agencies are working together to identify the appropriate level of 

analysis needed to conduct the necessary environmental reviews, 

synchronize the public engagement, and complete the other procedural steps to ensure that all necessary decisions are made within 

the timelines established by the Executive Order. 

Since the agencies signed the MOU, CEQ and agency leadership 

have been coordinating extensively on agency streamlining efforts 

to identify and implement policy process and regulatory changes. 

Some significant steps have already been taken. For example, the 

Federal Highway Administration signed an agreement with the 

Fish and Wildlife Service (FWS), the U.S. Army Corps of Engineers 

(USACE), the Environmental Protection Agency (EPA), the Coast 

Guard, and the National Oceanic and Atmospheric Administration 

(NOAA), coordinating agencies’ processes and committing to working together to achieve the goals of the Executive Order, something 

that seemed so simple but something that previously had been so 

complicated. 

Additionally, the Secretary of Interior issued a Secretarial Order 

and additional guidance that advanced the department’s NEPA 

streamlining efforts within the Executive Order. 

Next, the Army Corps of Engineers issued a Section 408 policy 

change adopting other agencies’ NEPA documents and issued a policy to improve coordination and risk management among the Federal family. This is not rocket science. 

Many agencies are expanding the use of time-saving, programmatic consultation, improving internal clearance processes 

along with increasing agency capacity for staffing projects. 

Moving forward, agencies will be issuing directives and conducting training with all levels of organizations, from headquarters 

down to the field offices, which we all know is some of the most 

important activity, to ensure that timetables and plans to implement One Federal Decision are done nationwide. And the Office of 

Management and Budget (OMB) and CEQ, in collaboration with 

agencies, are implementing a performance accountability system to 

ensure agencies meet the permitting timetables. 

While CEQ is focused on the development of a better process for 

all infrastructure project permitting, the Permitting Council is focused on overcoming obstacles on a project-by-project basis. Ms. 

Colamaria will expand further on the implementation of FAST–41 

and the Permitting Council’s role in streamlining the Federal permitting process. 

As a result of One Federal Decision, and the work of the Permitting Council, Federal environmental review and permitting processes will be streamlined, more transparent, and, most importantly, more predictable. Our goal is to give the American people 

the process they deserve and not the process they have. 

We are looking forward to continuing to work together with you 

on advancing One Federal Decision. Thank you again for the invitation, and I look forward to the discussion. 

Senator PORTMAN. Thank you, Mr. Herrgott. 
7 

1The prepared statement of Ms. Colamaria appears in the Appendix on page 38. 

We will now hear from Ms. Colamaria. 

TESTIMONY OF ANGELA COLAMARIA,1 ACTING EXECUTIVE DIRECTOR, FEDERAL PERMITTING IMPROVEMENT STEERING 

COUNCIL 

Ms. COLAMARIA. Thank you. Senator Portman, Senator 

McCaskill, thank you for this opportunity to speak to you today 

about our progress in improving the Federal permitting process for 

infrastructure projects. 

Throughout my career, I have participated in the Federal permitting process from various perspectives. As an attorney, I represented project sponsors who were trying to build new projects. I 

worked within a permitting agency where I oversaw the NEPA review for infrastructure projects. I am currently leading a working 

group tasked with improving the Federal permitting process across 

all agencies. And after FAST–41 was passed in December 2015, I 

helped lead the Administration’s efforts to set up the Council and 

the new governance system and to provide guidance to agencies as 

we started to implement FAST–41. 

FAST–41 codifies many of the best practices that experts identify 

as essential to creating the sea change needed to overall process 

improvements for the Federal permitting process. This is all to say 

I believe in the principles of FAST–41 and it is my priority to ensure it is a success. 

Today I want to describe some of the project-specific successes we 

have been able to achieve so far, using the tools provided by FAST– 

41. We have accomplished this in three main ways: breaking down 

silos through enhanced coordination, ensuring efficiency in the permitting process, and providing oversight and issue resolution. As 

Senator Portman mentioned, these efforts already have resulted in 

saving FAST–41 projects over $1 billion in costs through avoided 

permitting process delays. 

I would first like to point to our efforts to break down silos across 

government to create a more standardized, predictable permitting 

process. The enhanced interagency coordination that supports our 

ability to identify and resolve potential impediments to the permitting process are led by deputy secretary-level Council members as 

well as agency chief environmental review and permitting officers 

(CERPOs). 

My office has established regular in-person meetings to bring 

these CERPOs together and appropriate staff for in-depth conversations on specific FAST–41 projects. These meetings allow 

interagency discussion and identification of potential delays so that 

they can be resolved early in the process. 

To my second point, ensuring efficiency in the permitting process, 

my office ensures agencies work together to ensure each FAST–41 

project has a permitting schedule that is optimized. For example, 

my office serves as a communication bridge to connect personnel at 

all levels of the government with staff and subject matter expertise, 

both within an agency and then across agencies, to identify and resolve project issues. 
8 

My third point on oversight and issue resolution, my office uses 

FAST–41 tools, including the Coordinated Project Plans (CPPs), the 

publicly available permitting dashboard, agency representatives, 

and that is both at the working group level, the CERPO level, and 

the Council level, and the provisions limiting modifications to permitting timetables, all to ensure that each FAST–41 project receives the most efficient and effective permitting process possible. 

I would like to share just three examples of our work this year 

in keeping projects on schedule and on track. The first success 

story is our effort to facilitate cooperation among agencies involved 

in the Nexus Gas Transmission Line, to ensure an efficient and 

timely 106 review under the National Historic Preservation Act. 

The resulting coordination among agencies allowed subsequent authorizations to move forward and saved an estimated 6 months and 

$300 million in capital costs to the project. 

The second success story results from my office’s oversight role 

leading to the successful drafting and implementation of a Programmatic Agreement for the 106 review for two FAST–41 projects. 

Our actions supported the Advisory Council on Historic Preservation in facilitating issue resolution with three different Federal 

agencies and the States that were involved in that project. For one 

of those projects, the Atlantic Coast Pipeline, the completion of the 

Programmatic Agreement allowed other Federal permitting actions 

to proceed forward, which then allowed the project sponsor to use 

that year’s tree-clearing window for construction. That avoided a 1- 

year delay for that project. 

The final success story is an example of an effective FederalState coordination in the Mid-Barataria Sediment Diversion 

(MBSD) Project. I will not say a lot about that because I know we 

have distinguished speakers that are going to talk about that some 

more. But the project created the first FAST–41 MOU, which established clear roles and responsibilities for not just the Federal 

agencies but also the State agencies involved in that project. To address complex issues related to NEPA implementation, our office 

worked with CEQ to provide subject matter expertise to the agencies to help them identify the next steps for that project. These actions resulted in a reduction in the current permitting schedule by 

nearly 2 years for this project. 

In summary, I look forward to building on the $1 billion in avoided permitting delays as we work to fully implement the potential 

of FAST–41, while maintaining important environmental protections. 

Thank you. 

Senator PORTMAN. Great. Thank you. Dr. Johnson. 
9 

1·The prepared statement of Mr. Johnson appears in the Appendix on page 42. 

TESTIMONY OF JOSEPH JOHNSON, PH.D.,1 EXECUTIVE DIRECTOR, FEDERAL REGULATORY PROCESS REVIEW AND ANALYSIS, ENVIRONMENT, TECHNOLOGY, AND REGULATORY AFFAIRS, U.S. CHAMBER OF COMMERCE 

Mr. JOHNSON. Thank you. Good afternoon, Senator Portman, 

Ranking Member McCaskill. The U.S. Chamber of Commerce has 

been involved in permit streamlining for a long time. The Chamber 

greatly appreciates this Committee’s interest in Federal permit 

streamlining and the work the Committee did in the 114th Congress that led to passage of Title 41 in the Fixing America’s Surface Transportation Act. 

My statement today details the Chamber’s strong support for the 

Federal permit streamlining provisions in FAST–41, our members’ 

experience with it since passage, and our continued support for 

next steps to improve the permitting process in S. 3017, the Federal Permitting Reform and Jobs Act. 

FAST–41 actually did a lot. It established the multi-agency Federal Permitting Improvement Steering Council and it established a 

process that includes designation of lead agency, timetables for 

projects, coordination between agencies, dispute resolution mechanisms, and judicial review reforms. 

One example of the benefits of FAST–41 is the transparency and 

certainty generated by the permitting timetable. Simply put, our 

members find this feature indispensable. Knowing an expected 

schedule for all the steps in the permitting process from the beginning allows project sponsors to better coordinate and manage 

scheduling of contractors, suppliers, and resource needs. 

Simply by reducing the uncertainty of permitting through the 

timetable, coupled with the other provisions to keep this process on 

track, our members who work on covered projects, including those 

all along the supply chain, not only project sponsors, are better 

able to manage resources, reduce down time and waste, and manage workflows to get more done, hire more employees, and help 

grow the economy. 

With the Council recently reporting that 97 percent of covered 

projects had timetables in their 2017 annual report, we are near 

full implementation on covered projects across all agencies. This is 

a significant step forward. 

Not surprisingly, Chamber members are also highly supportive of 

speeding up the permitting process. The Council recently reported 

that they were able to reduce the permitting timetable on the MidBarataria project by 22 months. I am not the expert here on that 

project. I will not go into details but this is a significant step. 

It is only one case study but it is a positive indication that the 

FAST–41 process works and that we should expect to see more 

benefits from reductions in permitting timetables in the near future. It has only been 21⁄2 years since implementation began and 

we are already beginning to see massive payoffs in terms of 

projects scheduling reductions. 

An important next step is further improving the permitting process and increasing the number of covered projects. To that end, the 

Chamber strongly supports S. 3017, the Federal Permitting Reform 
10 

1The prepared statement of Ms. Goldfuss appears in the Appendix on page 47. 

and Jobs Act. The bill does four crucial things-eliminating the 7- 

year sunset in FAST–41, by far the most important. This will ensure that FAST–41 continues into the future and serves as the 

foundation for additional future permitting reforms. 

Two, it expands the statutory definition of covered projects. By 

removing exclusions in FAST–41, more transportation infrastructure projects will become eligible. This is crucial for modernizing 

America’s infrastructure moving forward. 

Three, it sets a 2-year goal for permitting covered projects, by requiring agencies to submit a plan that adheres to this timetable. 

An expected 2-year permitting schedule is a powerful incentive to 

increase investment in covered projects. The Chamber firmly believes there is no good reason why any Federal permit should ever 

take longer than 2 years to obtain. 

And four, it expands the Council’s consulting authority by codifying provisions of EO 13807, which grants the Council enhanced 

consultation authority and expands the Council’s dispute resolution 

authority, allowing for it to better coordinate agency actions and 

keep the process on schedule to further reduce project timetables. 

In conclusion, the Chamber applauds the work that has been 

done to implement FAST–41 so successfully and expediently, and 

strongly supports passage of S. 3017. Early successes have shown 

that the FAST–41 process works. Enhancing the system with the 

common-sense improvements in S. 3017 will allow a broader range 

of projects to take advantage of improvements in the permitting 

process and ensure that this process continues to be refined without the clock running out on FAST–41. 

In January 2018, the Chamber laid out a four-point plan to modernize American’s infrastructure, of which enhancing the usage 

rate and effectiveness of FAST–41 is one of the four key components. 

We look forward to working with this Committee to ensure that 

we have the necessary tools to modernize America’s infrastructure 

moving forward. Thank you. 

Senator PORTMAN. Thank you, Dr. Johnson. Ms. Goldfuss. 

TESTIMONY OF CHRISTY GOLDFUSS,1 SENIOR VICE PRESIDENT, ENERGY AND ENVIRONMENT POLICY, CENTER FOR 

AMERICAN PROGRESS 

Ms. GOLDFUSS. Thank you. Thank you for having me today, Senators Portman and McCaskill. 

What we are talking about today, as you two know very well, is 

not and should not be politically divisive. Both Republicans and 

Democrats have sought to improve the process by which the government permits major infrastructure projects. As Managing Director at the Council on Environmental Quality under President 

Obama, I worked closely with my colleagues at OMB and the National Economic Council (NEC), at the time, to implement the 

FAST Act by standing up the Permitting Council, writing its inaugural guidance, and staffing it with talented people, some who are 

in this room still, who knew how to move the levers of government 

to overcome barriers. 
11 

Prior to being at CEQ, I was Deputy Director at the National 

Park Service (NPS), which gave me a front-row seat to a lot of the 

interagency conflicts and disputes that can lead to the delays. Both 

at the White House and at NPS, I saw first-hand the need to coordinate agencies, establish milestones, and create transparency so 

that environmental review can be improved where necessary and, 

quite honestly, not blamed for the burdens of a complicated network of public and private requirements. That is why I supported 

the creation of FPISC and all the other permitting reforms when 

some of my other colleagues did not. 

Through the Title 41 and FAST Act and other recent actions, 

Congress has done a lot to give the Federal Government the tools 

to modernize the way it does business. However, those tested measures only work if the government uses them and builds trust with 

industry to demonstrate that this model can work in the complex 

government structure. Unfortunately, the Administration has 

pushed Congress to expand its authority rather than effectively exercising all the tools you have already given them. As a result, I 

have reservations and concerns about amending the Act without 

more proof points from the implementation of existing authorities. 

The Administration and others point to the permitting process as 

the main cause of project delays. Existing data show, however, that 

delays are more often the result of a lack of funding. Recognizing 

the need for further study and causes of project delays, the Congress gave the U.S. Department of Transportation (DOT) the permitting dashboard, which is still very much a work in progress, 

with incomplete data and limited mapping capabilities. It has significant potential but we are not there yet. 

While we were pleased to see an acting director announced, the 

FPISC executive director position is still vacant. A political appointee is particularly important in this role to demonstrate to departments and agencies the level of priority and commitment from 

the White House. The same is true for project sponsors who may 

question the legitimacy of FPISC without political leadership. This 

person would have broad authority to advance the group’s mission 

and move large projects forward. 

Most importantly, though, the FAST Act allowed FPISC to establish a fee structure for project proponents. The FPISC has not yet 

implemented this initiative, which would help facilitate faster reviews at the expense of project sponsors, in this case private developers. These additional funds will improve the process and perhaps 

allow for other funds to be invested in the dashboard or other important measures. The Administration has failed to use the basic 

tools of governing that have been proven to improve permitting 

times. 

When the Committee, or if the Committee chooses to advance 

other legislation to enact more permitting reforms, I would like to 

offer a few recommendations. 

First, the FAST Act, the Water Resources Reform and Development Act (WRRDA), and the Moving Ahead for Progress in the 21st 

Century Act (MAP–21) all contained permitting reforms and 

changes to environmental review that need to be harmonized to 

make clear which authorities apply to which projects. 
12 

1The prepared statement of Mr. McGarvey appears in the Appendix on page 51. 

Next, given the slow implementation pace, it would be prudent 

to keep a sunset date for provisions of FAST–41 that have not yet 

been implemented, such as advancing a preferred alternative or judicial review. 

Last, I strongly recommend against any consideration of legislated deadlines. Little can be gained by forcing under-resourced 

agencies to develop the projects faster. This will only lead to more 

court battles and additional stops and starts in permitting 

timelines as agencies rush reviews and communities are cut out of 

the process. Instead, thorough implementation of FAST–41 and 

other permitting reforms will net excellent data for the Committee 

to truly diagnose any additional problems in process and procedure. 

In conclusion, I thank you again for inviting me to speak to you 

about this top priority issue for all of us, which is addressing the 

needs of the Nation’s crumbling infrastructure while protecting the 

air, water, and wildlife on which we all depend. Thank you. 

Senator PORTMAN. Thank you, Ms. Goldfuss. Mr. McGarvey. 

TESTIMONY OF SEAN McGARVEY,1 PRESIDENT, NORTH 

AMERICA’S BUILDING TRADES UNION 

Mr. MCGARVEY. Good afternoon, Senator Portman, Senator 

McCaskill. Thank you both for your leadership on this issue and 

for convening this Roundtable to discuss permitting reform. As 

President of North America’s Building Trades Union (NABTU) and 

on behalf of the three million construction workers in North America that I proudly represent, thank you for allowing me to join this 

distinguished panel to discuss an issue that directly impacts the 

building and construction trades men and women across the Nation. 

Before we begin I would like to take a very brief moment to 

make a few comments. 

America’s labor leaders and businesses agree: the permitting 

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

modernized to ensure efficiency, safety, accountability, and transparency. 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. 

The general problem with the permitting process is this: project 

owners in the public and private sectors often confront an overly 

complex, slow, and inconsistent Federal permitting process. Gaining approval for a new bridge or factory typically involves negotiating a maze of review by multiple Federal agencies with overlapping jurisdictions and no real deadlines. Usually, 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 

even worse, halt a half-completed construction project in its tracks. 

This problem still needs more attention. 

Senators, your bipartisan work and leadership on the Federal 

Permitting Improvement Act, which we were proud to support 

through several sessions of Congress, demonstrated a steadfast 
13 

commitment to cutting red tape in order to get much needed infrastructure projects moving forward. NABTU, and the entire building 

trades community, was tremendously grateful that these efforts 

were finally enacted and resulted in Title 41 of the FAST Act. Already, Title 41 has started to streamline the Federal permitting 

process, providing new hope for construction workers, project owners, and industry leaders across the country that our system can 

be transparent and efficient. 

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

to rectify the problem. We believe the creation of the Federal Permitting Improvement Steering Council was a long-overdue step in 

the right direction. We are confident that 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 construction owners, contractors, and workers for years. 

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

Furthermore, by tightening litigation timeframes surrounding some 

permitting decisions, major infrastructure projects may 1 day no 

longer be subject to the seemingly never-ending cycle of lawsuits 

project opponents advocate. The new process is working, not only 

to the benefit of the construction industry but also to the Nation 

at large. 

However, as with any program or agency, there is always room 

for improvement and innovation. I commend you on your continued 

efforts to address this critical work in improving the permitting 

process with your introduction of S. 3017, the Federal Permitting 

Reform and Jobs Act. 

I must also acknowledge the Trump Administration’s efforts to 

help alleviate some of the logjams in the permitting system as a 

whole. We have supported the thoughtful steps they have taken to 

reform the system while maintaining the underlying regulations 

that protect the health and safety of our members on the jobsite 

and the environmental and human impacts of projects on communities across the country. 

I know there has been much confusion on the issue of permitting 

reform versus regulatory reform, and it is important to note that 

while permitting and regulations are intertwined, they are still exclusive of one another. We can reform the permitting process without sacrificing the integrity of the underlying regulations, and we 

have testified before the Senate on this point. I will be very clear: 

North America’s Building Trades Union supports responsible regulations that protect the environment, public health, and worker 

safety. We believe these regulations 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 lack of certainty and transparency 

in the process and the unnecessary delay and redundancy in the 

permitting process. These unnecessary barriers, coupled with the 

constant stream of endless lawsuits that project opponents rely 

upon because they cannot defeat a project on the merits of the 

project itself, leads to a loss of investment and job opportunities. 

When projects are tied up in the courts our members are not work-
14 

ing, they are not putting food on the table, and they are not providing for their families. 

North America’s Building Trades Union strongly supported the 

FAST–41 reforms because they lead us toward a path of standardization and finality in the permitting process. That pathway has 

created a floor on which future streamlining efforts can build upon. 

But more must be done, and we are committed to advancing practical, bipartisan solutions to further improve this process. We welcome collaboration from all interested parties who are serious 

about advancing this issue. Thank you. 

Senator PORTMAN. Thank you, Mr. McGarvey. 

And now a co-sponsor of FAST–41, former Senator Mary 

Landrieu. 

TESTIMONY OF THE HONORABLE MARY L. LANDRIEU, SENIOR 

POLICY ADVISOR, VAN NESS FELDMAN, LLP; ACCOMPANIED 

BY MEGAN K. TERRELL, LEGAL ADVISOR, COASTAL ACTIVITIES, ENVIRONMENT & NATURAL RESOURCES OFFICE OF 

THE GOVERNOR OF LOUISIANA 

Senator LANDRIEU. Thank you, Senator Portman and Senator 

McCaskill. It is wonderful to be here with you again, working on 

some very important legislation and thoughts. I want to commend 

you both for your steadfast commitment to this issue and working 

closely together to build a bipartisan solution, which many of the 

colleagues, or those testifying today have mentioned, because without bipartisan support, what we are suggesting may not move forward. 

Both of you are so wise to understand that you could talk all day 

about infrastructure and the need to provide more infrastructure 

for our Nation, but if this process is not fixed or focused or made 

better, it would really be not worth speaking about, because there 

is such a gap between what our aspirations are and what is actually possible in processing these many projects. 

I am here representing Van Ness Feldman, an entity that represents many clients, but today I was asked to speak in my role 

representing the Louisiana Coastal Protection and Restoration Authority (CPRA). It is a $1.3 billion project, which is one of the largest on the dashboard. It has actually been mentioned in the testimony of those before me. Unlike other projects that are struggling 

to find the funding, Senator McCaskill and Senator Portman, we 

have our funding. We have the plan to restore our wetlands. It is 

one of the largest wetlands restoration projects underway in the 

Nation. The funding will come from a variety of sources. There is 

some Natural Resource Damage Assessment (NRDA) funding that 

must be approved but it is basically designated. We are not one of 

the projects that Christy might have mentioned, that are waiting 

for funding, so there is no reason to speed us up because we do not 

have the money. 

We actually have the money, and we have the scientific plan. We 

have a master plan for restoring Louisiana’s coast that, Senator 

McCaskill, you and Senator Portman are somewhat familiar with 

because you have been very helpful. That was passed unanimously 

by our legislature. That, amazingly, through Republican and Demo-
15 

1The prepared statement of Senator Landrieu appears in the Appendix on page 56. 

2The MOU referenced by Senator Landrieu appears in the Appendix on page 93. 

cratic Governors has been supported. That is uniformly supported 

by our environmental community. 

We have our scientific plan, we have our political blessing, if you 

will, but we are struggling to get our permits. 

When we first started this project, Senator McCaskill, representing this client, the Corps of Engineers told us, in a calm 

voice, that it would take us 10 years—10—to get our permit. Now 

this is after you passed the FAST Act. And so we would respond 

to them, ‘‘Have you read about the FAST Act?’’ ‘‘Oh, yes. We have 

read about it but we really do not, you know, have to, like, pay a 

lot of attention to it.’’ I said, ‘‘Well, I think you might want to pay 

attention to it, because it says that you have got to go fast, and 

10 years is not fast.’’ 

Then they thought they were doing us a big favor by coming back 

about a year later. Megan will tell you the details—and said, ‘‘Oh, 

we have figured this out. We have figured out how to take it down 

to 6 years.’’ We said, ‘‘Six years is still too long.’’ 

We have lost 1,800 square miles of coastline since 1932. We lose 

a football field of land every hour. Louisiana is in a race against 

time to restore our wetlands, so while I most certainly respect all 

of the projects that are on FAST–41—building highways, building 

airports, to our trade unions—this is really important. These are 

not just any jobs. These are well-paying jobs that keep a lot of people employed. But our project is a coastal restoration project with 

its own money. Its sole purpose is restoring the environment, 

whole-scale restoring of the environment, building this marsh. And 

they are saying to us, ‘‘You have to wait 10 years.’’ ‘‘You have to 

wait six.’’ 

I was proud, in representing our client, to lead an effort, and the 

team is here, to work the first MOU, Senator McCaskill and Senator Portman, under your law. Using your law as the guideline, we 

worked the first MOU to bring clarity, transparency, a 2-year aspirational goal—and I understand you may not want to put 2 years 

in the law but it sure sounds good to people trying to build 

projects. It sounds better than 10. Now whether you put it in the 

law or not, but a 2-year goal for these projects, transparency, etc., 

is so helpful. 

I am going to turn in the rest of my statement for the record1

and turn it over to Megan. But the MOU that we established, I am 

turning in as a part of the record.2 Hopefully it can serve as a 

template. I generally support the goals of the enhancements to 

the FAST Act, and do believe, as Senator McCaskill said, that having—and both of you—a permanent director, a budget, a staff to 

give some strength to what you all are trying to do. 

But thank you for continuing your focus on this, because the 

work is not done, and there are billions and billions of dollars of 

projects that could be built. Many have their own funding. Many 

have their own capital that need not 10 years or 6 years, but need 

more reasonable timelines. 

Thank you so much and I will turn it over to Megan Terrell. 
16 

1The prepared statement of Ms. Thompson appears in the Appendix on page 59. 

Senator PORTMAN. Well, thank you, Senator Landrieu, and, Ms. 

Terrell, would you like to speak now or be available to answer 

questions, because Senator Landrieu, even though she is no longer 

a Senator, has learned how to use all of her time. 

Senator LANDRIEU. Oh, I am sorry. Was I supposed to save my 

time? I did not know. 

Senator PORTMAN. No. We are going to have Megan there for 

questions. 

Senator LANDRIEU. OK. Do the questions. 

Ms. TERRELL. No, that is fine. I am happy to answer any projectspecific questions. 

Senator PORTMAN. That is great. We are going to have some for 

you. 

Ms. TERRELL. Great. 

Senator Portman. Ms. Thompson. 

TESTIMONY OF JOLENE S. THOMPSON,1 EXECUTIVE VICE 

PRESIDENT, MEMBER SERVICES AND EXTERNAL AFFAIRS, 

AMERICAN MUNICIPAL POWER, INC. 

Ms. THOMPSON. Thank you, Chairman Portman and Senator 

McCaskill. I am pleased to have the opportunity to participate in 

this Roundtable and discuss our experience with the FAST–41 

process. 

AMP is a nonprofit, wholesale power supplier and services provider for 135 municipal electric systems across nine States, including Ohio, which is where we are based. We have a diverse generation portfolio that includes fossil resources and renewable resources. 

We have a unique experience with permitting and infrastructure 

processes as we recently completed the largest development of new 

run-of-the-river hydropower generation in the United States. We 

built four projects at the same time, along the Ohio River, at existing Army Corps dams. These represent more than 300 megawatts 

of new emissions-free, long-life generation and a $2.6 billion investment. 

I want to express our sincere appreciate to Senator Portman for 

his support of our projects as well as his leadership in pursuing 

balanced permitting reform. As he indicated, this process started 

with our telling him the tales of woe that we went through in all 

of our permitting processes with the four projects that we were 

doing. 

Last fall, our CEO testified before this group about the importance of reasonable and cost-effective permitting processes. He 

talked about the project that we still have remaining—the R.C. 

Byrd project, which would be a 48-megawatt facility located in Ohio 

at an existing Army Corps dam. The Byrd project is one of the 34 

projects in the initial FAST–41 inventory. 

We understand the need to balance environmental protection 

with development. However, the distinct Federal Energy Regulatory Commission (FERC) licensing and then Army Corp and resource agency permitting processes for hydropower are especially 

arduous, often duplicative, and typically take more than a decade. 
17 

Licensing for the Byrd project began in April 2007, obviously predating the effort on FAST–41. We received our license a decade 

later, in August 2017. We believe if the FAST–41 process had existed earlier this would have moved much more quickly. Today our 

economic commitment to the Byrd project exceeds $4 million with 

permitting remaining. 

To tie this into the FAST–41 process, let us back up to July 2014, 

when FERC issued its draft environmental assessment for the 

Byrd project. A stalemate developed with AMP and FERC on one 

hand, and the Army Corps and Fish and Wildlife on the other, regarding a disagreement about the timing of the modeling study, a 

study which would cost up to $2 million. 

We were asked to complete the full study prior to receiving the 

FERC license. We agreed to perform the study post-license but 

were unwilling to do so pre-license as that would have placed the 

study cost at risk if the project did not move forward. We spent 

much of 2016 gathering additional information in an attempt to address this issue with the resource agencies. 

Concurrent with this stalemate, our experience with the 

FAST–41 process began in September 2016. We had conference 

calls with the Permitting Council staff to discuss the hydropower 

approval process and the challenges we were facing with our 

project. In June 2017, FERC and Fish and Wildlife finally reached 

concurrence on the issue at hand, and Fish and Wildlife issued 

their biological opinion. This broke the logjam and FERC subsequently issued the license a few months later. We attribute this 

movement to the visibility that the Byrd project received as a result of being included in the FAST–41 inventory. 

We are now at a juncture where we are experiencing a 

Catch–22 involving the staging of the conditions contained in the 

FERC license with other requirements and deadlines. One condition in the license requires us to reach an agreement with the 

Army Corps to coordinate plans for construction site access. Importantly, other separate license obligations are contingent upon completion of this agreement. For instance, we cannot begin certain 

modeling prior to completion of the agreement because we are not 

permitted to begin the core drilling absent the agreement. Without 

the core drilling, powerhouse locations cannot be determined. Without powerhouse locations, certain studies would be premature. 

We drafted the agreement and sent it to the Army Corps for 

their review in October 2017. They sent their proposed changes 

back this month and we are reviewing those. The fact that the 

FERC license conditions do not marry up to the Army Corps agreement results in a schedule that can be illogical, at best. 

My point in describing this post-licensing situation is to highlight 

the importance for hydropower projects of continuing the Permitting Council process post-licensing into the permitting phase. 

From our experience, FAST–41 has been successful in improving 

the transparency of the Federal environmental review and authorization process for covered projects. Concurrent reviews, lead agencies, firm deadlines, and a top-down approach are very important 

steps in improvements to the permitting process. 

The permitting dashboard can identify delays caused by intraand inter-agency disputes, which can help facilitate resolutions. 
18 

However, State agencies are not currently participants and they do 

play a critical role in the approval process for many projects. 

We recommend providing the appropriate resource commitments 

for the Steering Council and broadening the scope of the Council 

process to ensure that there is an ability for full resolution of disputes that can exist between State and Federal agencies, as well 

as between developers and agencies. 

Thank you for providing us with the opportunity to appear before 

you today and for your work on this important topic. We appreciate 

the R.C. Byrd project having been included in the initial inventory 

and we view the FAST–41 process as an important tool in balanced 

permitting reform and infrastructure development. 

Senator PORTMAN. Thank you so much. Ms. Thompson, the testimony this afternoon has been very helpful because it gives us a lot 

to chew on, a lot to talk about, and I look forward to getting into 

questions. 

I am going to ask Senator McCaskill if she is interested in going 

first. She is the Ranking Member of the full Committee and I know 

she has to get to another commitment shortly, so I want to have 

her have the chance to ask questions and we will get into a little 

dialogue here. 

By the way, this is not a hearing in the sense that if you have 

something important to say, speak up. I promise not to wield the 

gavel too much, and let us have a dialogue. Senator McCaskill. 

Senator MCCASKILL. Let me start with FERC. The AMP hydropower project is a perfect example of how frustrating it is when 

FERC and the Army Corps do not talk to each other and require 

duplicative information. The whole point was to get agencies to 

work together. 

I understand that FERC has resisted in participating in the development of the initial timeline, saying that they are an independent agency. Can you address this, Ms. Colamaria, and is there 

something we can do in the new legislation that would—other than 

a two-by-four—that would convince FERC that whether it is the 

Army Corps or FERC, they all need to play nicely within this law. 

Can you speak to that? Is this accurate, that FERC is pretending 

as if they do not have to participate? 

Ms. COLAMARIA. I would just say, both with FERC and the Nuclear Regulatory Commission (NRC), the two independent agencies 

we have on the Council, they are actively participating in the implementation of FAST–41 now. They participate regularly in the 

working group and, as you know, FERC has many of our current 

FAST–41 projects on the dashboard. They are the lead agency. 

There are statutory limitations to some of the things that they 

can and cannot do, ex parte communications, for example, which 

we are working with FERC environmental staff, licensing staff, and 

their General Counsel (GC) to think of creative ways to move forward so that they can still continue their coordinating roles with 

the agencies and use all the FAST–41 tools while still maintaining 

their independent agency status. 

Senator MCCASKILL. Well, I think it would be helpful for us if 

there is language—— 

Senator PORTMAN. Yes. 
19 

Senator MCCASKILL [continuing]. That would clear this up and 

that would be more directive and not discretionary. If you could 

share that with us I think what we need to do is make sure we 

draw this legislation as cleanly and tightly as possible. Because it 

does not do us any good, if we get everybody working except one. 

Ms. COLAMARIA. Right. 

Senator MCCASKILL. I mean, it is like you, Mary, and the Army 

Corps. 

Ms. COLAMARIA. Exactly. 

Senator MCCASKILL. Everybody is working well but if the Army 

Corps thinks that somehow they are outside of this, then the whole 

thing falls apart. 

Senator LANDRIEU. Senator, I would like to just jump in and add 

to what has been said. Our office is actually an expert on FERC. 

It is not work that I do personally but I am very proud that Van 

Ness Feldman has one of the largest FERC practices. If you do not 

mind, I would like to submit that question, if the record stays open, 

and we could provide probably several—— 

Senator MCCASKILL. That would be great. 

Senator LANDRIEU [continuing]. Ideas to the Committee, if you 

would accept it, and we could provide it within, what, 48 hours or 

a few days? 

Senator PORTMAN. Yes. That would be great. We had a hearing 

on the Energy and Natural Resources Committee last week where 

we had the FERC Chairman—actually, we had all the commissioners there, which is, if not the first time it has ever happened, 

it is unusual—and I asked him this very question, as you probably 

know. I talked to him about the Council, asked him why they were 

not posting on the dashboard. And I asked him to get back to us 

on it because he was not aware of the issue. 

But the point is, to Senator McCaskill’s question specifically, are 

the Nuclear Regulatory Commission and FERC actually posting on 

your dashboards, or not? Are they posting their information and 

their deadlines? 

Ms. COLAMARIA. They are posting some of their milestones, but 

they still do believe they have some limitations on the way that it 

is posted, and so that is an example of—— 

Senator PORTMAN. And they said those are legal limitations, 

right? 

Ms. COLAMARIA. What was that? 

Senator PORTMAN. They say those are legal limitations. 

Ms. COLAMARIA. Correct. 

Senator PORTMAN. Even statutory limitations? OK. We should 

take a look at that. 

Senator MCCASKILL. We can fix that. 

Senator PORTMAN. Yes. 

Senator MCCASKILL. We can write that law. We can change that 

legal problem. 

Senator LANDRIEU. Amen. 

Senator MCCASKILL. I know we have some disagreements about 

whether or not we do the sunset or do not do the sunset. I have 

to go to another hearing, because I am Ranking Member and it has 

to do with all the stress and conflict we have around the border 

right now, and I need to go down there to that. But I want to ask 
20 

you Sean—it is so important in this era that we listen to workers 

and that we pay attention to the workers. I want to make sure 

from the perspective of your membership, if there is anything that 

we need to put in the legislation that would be helpful. 

I know getting these jobs ready to go faster, making them so that 

your folks can get to work in a more quick and efficient way matters, but if there is anything else I sure would like to have your 

input as it relates to our improvements to FAST–41. 

Mr. MCGARVEY. Well, I appreciate that, Senator. And, we are not 

only interested in expediting the permitting timeframe to more 

quickly deploy men and women that we represent onto those 

projects, but also we are running about 140 apprenticeship residence centers across the United States, one in Columbus, Ohio; 

Cleveland; one in St. Louis; Kansas City, where we are taking 

communities that have not had a lot of opportunity in their lifetime—communities of color, women, veterans—and using these infrastructure projects as their entryway into apprenticeship and on 

to the middle class, once they learn the skills sets. The more quickly we can go, the more people we can help. 

On top of that, over the next 10 years, we are going to move about $70 billion of our pension money out of other investments 

into alternatives in infrastructure and commercial real estate. So, 

like the Hair Club for Men, we are not just a client; we are an 

owner. When we are investing our dollars, it is important to us too. 

Senator MCCASKILL. I am not going to say anything about the 

Hair Club for Men. [Laughter.] 

You gave me an opening there that a Mack truck could drive 

through, Sean, but I am not going to say anything. 

Mr. MCGARVEY. You are correct. But there is a second opportunity for us, not only to get good help invested in the Nation’s infrastructure, also to get good returns for our pension funds that 

need them, but to create the jobs. With all the uncertainty and unpredictability, in the years that I have been working now at the Csuite level, with people who are investing hundreds of billions of 

dollars in gas and oil, petrochem, public and private other types of 

infrastructure, this predictability is the whole thing when it comes 

to the financing. The banks on Wall Street and others that are putting up a lot of this money, they cannot be in a position where they 

do not know when they are going to start to get the return on investment (ROI) on the investment, and as pension fund investors 

we are the same way. 

Again, if we could ever get to that magic 2-year where we knew, 

from start to finish, in 2 years we were going to know whether we 

were going or not, that would change the whole ballgame, I think. 

And not sun setting the bills. The other thing. 

Senator MCCASKILL. Let us go to that, because this is in the predictability place, and this will be my last question. You raised concerns about removing the sunset, Ms. Goldfuss. I just think that 

this predictability, if people think it might go away, then all of a 

sudden all of the speed that they had gained they think could dissolve, and not that our government is not totally predictable and 

stable and functioning smoothly. I am not being partisan there. We 

have the same problem. I mean, this is a door that swings both 

ways. 
21 

Do you see that removing the sunset has some advantages as it 

relates to predictability? 

Ms. GOLDFUSS. Yes, and just to clarify, I think for the portions 

of the law that we know are working—so the dashboard and the 

Council and the pieces that we see are demonstrating success—putting the sunset in place makes perfect sense. But we have not had 

the law long enough for specifically the judicial review pieces. 

The only recommendation I would make there is look at—is there 

a point in time that Congress could come back to some of the untested provisions of the law and see whether or not they are working. The sunset gives you that opening to maybe extend it several 

years and come back and look at the judicial review, or some other 

version of that, where you would check in. 

Senator MCCASKILL. So your objection to removing the sunset is 

about the untested parts dealing with the judicial review that we 

really have not—— 

Ms. GOLDFUSS. Right. We have not determined whether or not 

they work. Correct. 

Senator MCCASKILL. That makes sense. Thank you all very 

much. Thank you. 

Senator PORTMAN. Thanks, Senator McCaskill. We are joined by 

Senator Harris, and feel free to jump in at any time you would like. 

Senator McCaskill went first because she has to head down to another committee hearing. 

But again, there is so much to talk about here, and I thought, 

Mr. McGarvey, you pretty well summarized where we are in terms 

of the problem. The problem is we all want more infrastructure and 

we need it badly, and relative to other developed countries, we 

have a real gap in our infrastructure, across the board. Certainly 

that includes energy projects, as we heard about and environmental restoration projects, but also roads and bridges, ports, and 

things that directly affect the economic development of our country. 

So this helps a little bit. We have seen the billion dollars in savings already. It is awesome. The question is, what can we do to 

make it work better? I wanted to ask a couple of questions. 

First, to Ms. Colamaria, I know that you are in sort of an awkward position because we are talking about your Council and how 

it could work better, and you would be the last one to ask for more 

money for yourself, I am sure. Maybe not. But looking at what you 

have been able to do with $4 million over this period of time, saving about $1 billion, what could you do with $10 million? What 

could you do with $15 million? What would you do if you could get 

a higher appropriation? 

Ms. COLAMARIA. Before I answer that I just want to clarify something that Senator McCaskill said. Our budget through appropriations this year was $1 million, but that was significantly lower 

than what was requested by the President’s Fiscal Year budget. We 

did request $10 million and we were given $1 million. This year we 

requested $6.07 million and that is currently in both the House 

and Senate appropriations bills. 

As you alluded to, we are kind of skating by on a skeleton budget 

right now, but we have been able to accomplish some significant 

successes. But I do think that to fully realize the potential of 

FAST–41, to create that sea change across all agencies, we really 
22 

are going to need the full budget in order to really spend the time 

on each project that we do, shepherding each project through the 

process, having the one-stop-shop service for project sponsors, and 

then also just creating all the tools that the agencies will need in 

order to make their internal process and their intra-agency processes more efficient as well, including the GIS tools, making the 

dashboard more of a tool as opposed to a reporting function, that 

type of thing. 

Senator PORTMAN. Let me just be specific. You talked about $6 

million, roughly, in the budgets this year. Neither of those bills 

have been voted on yet but we are hoping that those bills and others will come to the floor. Would that be adequate for what you are 

currently experiencing—the number of projects on the dashboard, 

the amount of staff you need, the amount of tools you need, money 

you need to have the tools to help these agencies and departments? 

Mr. Herrgott, jump in here too, because I know you are very involved with this. 

Mr. HERRGOTT. She is doing a great job. 

Ms. COLAMARIA. I think given the current project workload, that 

is an adequate amount, given the fact that we are also planning 

on issuing fee regulations to further enhance our budget and to 

help both in terms of the operating costs for the Office of the Executive Director, as well as the cost to the agencies, for implementing 

FAST–41. 

Mr. HERRGOTT. I would just like to point out it is important to 

focus on making sure that the Permitting Council is adequately 

funded, but as you know from your experience in performance management at OMB, the problem that we are dealing with is fierce. 

We have a legacy, paper-based system that was developed before 

the Internet, in a way in which we have 59 statutes and up to 14 

agencies that oftentimes do not have a central repository for data. 

It is not just enough to create a dashboard and then to appoint a 

permanent executive director to make the systemic cultural 

changes within agencies. 

Just the way they talk to each other—and this is not a Republican or Democrat issue. This really is a process redesign. And to 

comments about One Federal Decision or the Permitting Council 

somehow eroding environmental protections or pushing too 

far—that would be an inaccurate assessment, because what we are 

really doing is taking a hard look at how agencies get to a decision. 

Not to a yes but to a decision, using the best available data. Although folks have talked about resources within the agencies, the 

important thing here is we do not have a central repository for 

data on where the resource constraints are. 

Part of the accountability system that is tied to FAST–41, and 

to One Federal Decision, is for the first time ever to ask agencies 

where the resources actually are, where they are being used, so we 

can pinpoint and target where the resources are. Throwing money 

at the agencies is not the problem. What we need to figure out is 

where they actually are. 

So that is why, on April 9th of this year, we had 11 Federal 

agencies and the Permitting Council sign the MOU, including 

FERC, which binds them to do things that are consistent with the 

spirit of FAST–41. I would argue that they both work hand-in- 
23 

hand. You need FAST–41 as a project-by-project tool to adjudicate 

project disputes and to change the way we do business. But you 

also need One Federal Decision across all Federal agencies, the entire Federal family, to do things a little bit differently, and you 

need them to work together or else we cannot achieve the coordinated project plan and the timelines that are in FAST–41. 

Yes, it is important that we address the adequate funding, but 

we also need the MOU, which is being implemented now, to take 

root, so that it can further support the FAST–41 successes. 

Senator LANDRIEU. Senator Portman, could Megan just say 30 

second on this, because it is so important. 

Senator PORTMAN. Absolutely. I was going to get down to your 

project next. I am really impressed that so many people know how 

to pronounce Mid-Barataria too. Everybody on the panel has said 

that word one time today, except you. 

Senator LANDRIEU. They know this project. They have heard a 

lot about this project. 

Senator PORTMAN. Probably America’s biggest environmental restoration project right now. Right? 

Senator LANDRIEU. Yes, it is. Go ahead, Megan. 

Senator PORTMAN. What is your sense? How is it working? 

Ms. TERRELL. I think the process right now has worked really 

well. The MOU that we entered into with the United States and 

the Federal cooperating agencies and the Corps as the lead agency 

I think was really the trigger to really speed things up for our 

project. It is one of the Coastal Protection and Restoration 

Authority’s five cornerstone projects in the State of Louisiana, and 

right now is going through the permitting process. As Senator 

Landrieu mentioned, it started off as a 10-year process, and then 

after the project got put on the dashboard in January 2017, the 

new Coordinator Project Plan was issued with about a 6-year 

project timeline. 

Shortly thereafter, there were several months of negotiations, 

but in early January of this year we entered into that milestone 

MOU, and that has really been the impetus to see the changes. We 

being the State of Louisiana, I think one of the key pieces that 

helped us, as part of the MOU, was allowing the State, as a project 

sponsor, to have more participation in the process. Where that led 

to was the State working directly with the Corps but also the other 

Federal cooperating agencies. We had a whole framework development team, multiple calls, where we sat down and really talked 

about this is the timeframe within which the modeling is going to 

take place, this is the timeframe that we can accomplish and working through each stage of the EIS process. 

Through that, that is where we were really able to create the efficiencies. It was through increased coordination and increased 

communication between the State, the Federal cooperating agencies, and the lead agency. The agencies also dedicated necessary 

staff and resources to the project that may not have been there before. 

One of the other extremely helpful things was to have executive 

staff in the room. We have Colonel Clancy, who is the commander 

and District Engineer of the New Orleans District and who was directly involved in the process, checking in and that ensures that 
24 

his staff and his personnel are focused on the project, but also ensures that it remains a priority. That has been extremely helpful. 

Senator PORTMAN. Do you feel like the Corps feels accountability 

for the performance of the other agencies? 

Ms. TERRELL. They do. 

Senator PORTMAN. That is the idea, to have one agency in 

charge. 

Ms. TERRELL. The lead agency in charge definitely helps. We 

have monthly meetings and the Corps is constantly keeping not 

only CPRA as the project sponsor but also the other cooperating 

agencies on task, and asking where we are in the timeline, and are 

we going to meet our milestone goals. I think that has been extremely helpful. 

I think having that goal of a 2-year permitting timeline has also 

been extremely helpful. I am acting as sort of a project manager 

for the environmental and permitting for this project, but I started 

off my career as an attorney, still am. But we all know, as an attorney, if you have a brief deadline, for example, you are going to 

make sure you do the prep work and make sure you get that filed 

on time. That is why I really think having a 2-year timeframe and 

a goal in mind helps keep people focus on the job at hand. It helps 

with early identification of issues that may result in delay down 

the road, and then you can enter into these dispute resolution processes, which we have, as part of our MOU, and that has been extremely helpful. 

Senator LANDRIEU. But that MOU would not have been possible 

without Alex and without the Federal push coming down to tell 

them, ‘‘You must work together,’’ and maybe we need stronger. But 

your team up here, Senator Portman, was terrific, because they 

would not be listening if it was not be coming from the top. 

Senator PORTMAN. By the way, the 2-year goal is that it is a goal. 

As I said earlier, if agencies cannot meet that goal for some reason, 

they have to explain why, and how they are going to try to meet 

it. That is what we are doing here. To the point earlier from Ms. 

Goldfuss, which I get, sometimes there are going to be situations 

that are out of the control of the agency. Something happens. But 

having that goal, as Mr. McGarvey said, is so critical. 

I want to give Senator Harris a chance to jump in here, if she 

is interested, and I appreciate you coming. 

OPENING STATEMENT OF SENATOR HARRIS 

Senator HARRIS. I appreciate you. Thank you. 

Ms. Colamaria, you are probably familiar with what happened 

back in October in California. PG&E, electric transmission lines, 

there was failure and it resulted in the death of 18 people and 12 

wildfires. At least Cal Fire estimates that the causal connection included the 12 wildfires that we experienced, that devastated communities. 

Tell me how FAST–41 is addressing, in particular, the safety 

concerns that we have around electrical transmission wiring. Certainly the efficiency and speed is important, but also safety. Can 

you talk to me a little bit about that? 
25 

Ms. COLAMARIA. Well, I can get back to you on any specifics, if 

there are any of our projects that are specifically dealing with that 

issue. I do not know off the top of my head if there are. 

FAST–41, the purpose of it is to improve the Federal permitting 

process for environmental reviews and authorizations. Those are 

typically more environmentally related authorizations, but there 

are some that also bring in safety concerns as well. The purpose 

is to ensure all the agencies that have some role in that project are 

coordinating and are talking and are identifying potential issues, 

possibly a safety issue that would come up later on in the process, 

identifying it earlier on so you can address it throughout the process, and making sure that all of those potential dangers are identified so they can be addressed as the project approval, or not approval, goes forward. 

Senator HARRIS. OK. If you could follow up with me that would 

be great. Thank you. 

Senator PORTMAN. How many projects are on the dashboard 

right now? 

Ms. COLAMARIA. There are 38 projects right now on the dashboard. Sixteen have completed their Federal environmental reviews 

and authorizations. Seventeen are in progress. One is planned. Additionally, two projects are paused at this time, due to project sponsor financial concerns, and two projects were canceled by the 

project sponsor, due to economic considerations, and then the need 

to determine the need for the project. 

Senator PORTMAN. How many have applied to be covered? 

Ms. COLAMARIA. We have had six new projects to apply to become covered projects under FAST–41. Five of them were determined to be covered projects. One was rejected because it was not 

one of the covered sectors under FAST–41. 

Senator PORTMAN. OK. Have you looked at our new legislation 

on the additional coverages on some specific areas? 

Ms. COLAMARIA. I am aware of the legislation. As you know, because the Administration has not taken a position on the bill, I 

cannot comment on any specific legislation. But I will say a lot of 

the issues addressed in the bill are issues we have seen come up 

during implementation. 

Senator PORTMAN. We will just take Mr. McGarvey’s word for it. 

He thinks it is good, to cover more, right, more covered projects. 

There are just some silly, I think, carve-outs that do not make 

sense, in terms of what is covered and what is not covered. There 

is not a big expansion because most things were covered. 

On the issue of you and your people being able to help give advice or consultation to non-covered projects, have you looked at that 

part of the legislation? I am not trying to put you on the spot here. 

That is a part of the bill that came out of some of the concerns that 

we heard from your folks. 

Ms. COLAMARIA. I am aware that it is in the bill. I will say, 

though, in the 13807 Executive Order we do cover that issue and 

it does allow, under the Executive Order, the executive director to 

help out on projects that are not FAST–41 covered projects. 

Senator PORTMAN. OK. Good. 

Ms. COLAMARIA. We are supportive of that, obviously. 

Senator PORTMAN. Yes. Good. 
26 

Senator LANDRIEU. Can I jump in to add to that? 

Senator PORTMAN. Yes, please. 

Senator LANDRIEU. On behalf of our client, we would support a 

broadening of the coverage, but as long as it does not dilute the 

focus on the large projects that are on the dashboard. So, of course, 

we would love to try to expedite as many projects across the country, Senator, as we can, but there are really significant projects 

that are on this dashboard. We have $1 million and no executive 

director, as we sit here today. So there are some really important 

steps that a permanent executive director, a good, solid budget, and 

continued coordination and transparency would be extremely helpful. 

Senator PORTMAN. Yes. 

Ms. COLAMARIA. Can I respond to that, just quickly? 

Senator PORTMAN. Of course. 

Ms. COLAMARIA. I think that you might have noticed that I qualified my $6.07 million number as sufficient for the current set of 

projects, but, yes, if we do expand, and we are starting to increase 

our marketing and letting more project sponsors know about the 

benefits of FAST–41. As we do start to significantly expand the 

number of covered projects we would need more money, exactly for 

that reason. We do not want to dilute the services we are providing. 

Senator PORTMAN. We wanted to start off with some projects like 

Mid-Barataria that would be successful, and thanks to your hard 

work, all of you, it is moving along. I would still like to shorten the 

time, as Mr. Terrell said. But, as we have successes and build on 

that foundation, obviously the idea is to give you the opportunity 

to take on more, and I was interested to see how many projects 

have applied. I would like to see more, but we need the resources 

to make it work. And to both of you, Mr. Herrgott and to you, Ms. 

Colamaria, I think the executive director of permanence would be 

really helpful for everybody. I am not going to put you on the spot 

to ask you why we do not have one yet, but I have asked others, 

including some of the senior officials in the Administration, and 

they all indicate that they are moving toward that. So I would hope 

that that is true. 

Mr. Johnson, you have not had a chance to speak up much since 

your good testimony, but what do you think the top priorities are 

going forward, and what should we be doing? I know you said you 

strongly support the new legislation. What should our emphasis be 

in that and what is the most important thing going forward? 

Mr. JOHNSON. Absolutely. We have already talked about a lot of 

the most important things. I think one thing to keep in mind is the 

entire permitting process, with all the interagency coordination 

that is required, is a complicated problem to solve. We are only 

roughly 21⁄2 years into implementation of the Steering Council and 

getting FAST–41 underway. They have made remarkable progress 

in that time. But we are just beginning to see the payoff from that, 

in terms of measurables, metrics that we can actually use to look 

at the success of the project. 

I think one of the things that would help, moving forward, is to 

increase the number and diversity of projects, to make sure that 

we get a better data set, more information in terms of how useful 
27 

this is, and make sure that we have a lot of coverage in how we 

can explain what this does to the process, and to show what this 

does to the process. 

Furthermore, I think it is absolutely critical that we remove the 

sunset provision to ensure that we can do that in a timely way and 

we can do that in a way that continues forward. Seven years is just 

too short to make sure that we get this fully implemented, that we 

have success stories, and that we could show that this process really works. 

And then, like I said, to build on top of it, to continue the process 

forward. I think Alex was talking about the complexity of the system and the problems that we have with paperwork and inconsistencies across agencies. These are problems that can be solved without any kind of substantive change in the statutes that require environmental review, or that require environmental review for permitting. We can actually not change the way we do anything but 

still improve and speed up the process, make it more transparent 

and better, simply by fixing the bureaucratic overhang that happens because of all of the inefficiencies in the system. 

The more we can do that and the more projects we can do that 

on, I think the better we will be in the long run and the better the 

position of the country will be, in terms of all of the things we have 

talked about—creating jobs, growing the economy, having more 

projects, and attracting more investment to these projects. 

Mr. HERRGOTT. One point on the judicial review section. It is 

worth pointing out that in MAP–21 and the FAST Act that those 

judicial reform remedies, that reduction in time, is already applicable to Section 139 of Title 23 and DOT projects. It is already internally consistent with other parts of the code. Data does exist that 

it does deliver projects faster, in a way in which projects otherwise 

would not go from red to green without those judicial reform sections. It would be an inaccurate assessment to say that the judicial 

reform sections in your bill are any different than other treatment 

that we have seen in something, that have been bipartisan bills 

that have passed through Congress. 

Senator PORTMAN. That is a good point. By the way, more data 

and the ability to use the data, so it is not just having big data 

but to be able to put the analytics behind it so it makes sense, will 

help put the performance measures. Ms. Goldfuss, I think it also 

helps with some of your concerns, frankly, because the inefficiencies of the process do not lead to a better result. 

Ms. GOLDFUSS. I completely agree, and I think the tension of 

adding more projects versus having a bunch of proof points to show 

that this works is some of what Senator Landrieu pointed out. This 

is a new-ish process for government. Unfortunately, we would all 

like the timeline to go faster. The success that you have was with 

a shift in Administration, which we know also takes time as new 

people come in and learn what is happening. 

So I think—— 

Senator PORTMAN. By the way, can I interject there for just a 

moment? Thank you for your work at the end of the Obama Administration getting the Council going. I did not mean to be—— 

Ms. GOLDFUSS. No. 
28 

Senator PORTMAN [continuing]. Ungrateful there, because I know 

there was lots of back-and-forth. The director and I were, as you 

know, in constant communication for a while there. 

Ms. GOLDFUSS. Constant. 

Senator PORTMAN. You did get it set up and going, and our job 

is to push, push, push. 

Ms. GOLDFUSS. And show that it works. Barataria is a wonderful 

project but we need more of that. We need to show that this is 

what we learned, and have that data to see what is really holding 

it up. 

Senator PORTMAN. I did not mean to interrupt you. Keep going, 

if you can remember your line of—— 

Ms. GOLDFUSS. I just wanted to agree with Alex on that point 

about the data. We may not agree on everything but having data 

from the system, really the inefficiencies in the bureaucracy are 

overwhelming. PDFs, for example, in some places, people just refusing to return phone calls or emails. FPISC really has put a big, 

bright light on the fact that people have to work together, and forcing that and showing that it can work on projects and still have 

strong environmental outcomes will mean that it will benefit more 

projects in the long run. 

Senator PORTMAN. Excellent. Anything else to add from the 

group? Ms. Thompson, you said you had a 10-year, as I heard you 

talking about the numbers, a 10-year permit in process, still, on 

your last hydropower plant. Is that right? 

Ms. THOMPSON. For the license for the project currently in the 

inventory it took 10 years to get the license. The license is the permission to start permitting, which will be another probably 4 to 5 

years, at least. A part of that being the amount of studies that you 

have to do for a hydro project because you are affecting a Corps 

dam. So there has to be a number of structural studies and those 

sorts of things. 

I wanted to echo what I heard—I have heard the words ‘‘cultural 

change’’ come up a couple of times and I just want to talk about 

how important that is. You are really trying to move some very entrenched bureaucracies, and ways of doing things that are not 

things that necessarily need to be changed in the statute. But this 

process can help encourage collaboration and shine a light on it. 

There are some things that just do not make sense in some of 

these processes and I think if that becomes apparent to the Permitting Council and there are other folks that are arbiters of the situation, that it could make some serious progress forward on certain 

things. Particularly you have some differences between the FERC 

and Corps, when we are dealing with our projects. Some things the 

Corps does are completely duplicitous of what we have already 

done in the FERC process. For instance, studies that after 5 years 

they will no longer accept a study. Once you have done the study 

and the licensing process, it is going to be expired, but it has already been done, but you redo the study, it is more cost for the developer. It is just more time and more delays. 

So cultural change, having the arbiter of someone looking at this 

and saying it does not make sense, is critically important. 

Senator PORTMAN. That is why I think it is so important that the 

Council be permitted to consult on non-covered projects, because I 
29 

think the effect of the Council is actually far more than $1 billion. 

I think it actually has changed the culture in some agencies and 

departments that do not have covered projects. I think that could 

happen even more if you all had the flexibility, and it sounds like 

you do under Executive Order already. But under statute to be encouraged to consult so that the cultural changes take place, not just 

with regard to a couple dozen covered projects but with regard to 

the agencies and departments, in general. That is kind of your job, 

to be the person who is trying to change a mindset and focus on 

results, jobs, and economic development. 

I think that is a really important point, and I am glad to hear 

you think there is some cultural shift going on in some of these 

agencies you are working with already, but it sounds like you could 

see a little more of it. 

Ms. THOMPSON. Yes, it could be a lot. There could be a lot more. 

Senator PORTMAN. Yes. 

Senator LANDRIEU. There is a lot of room to avoid duplication. 

Senator, one other idea I will throw out, and I can follow up with 

the staff on this. But it occurred to me, sitting here, with the jurisdiction of Homeland Security, that the Committee is responsible for 

rebuilding cities, counties, and portions of States that are destroyed 

by disasters. Of course, I led a lot of that effort when I was here. 

It occurs to me that a special grouping of projects would be infrastructure projects that must be rebuilt quickly after a storm. I am 

not sure there is any special HOV lane for that. We should think 

about that. 

Because, remember, these projects, for instance the bridge over 

Lake Pontchartrain, that I–10 collapsed, it had already been permitted once. It was a fine bridge. It just was overwhelmed by the 

force. Why would you have to wait to go through X number of years 

to rebuild it? 

Projects like that could go on a fast track if it could quickly be 

determined that that bridge was, in fact, safe. It needs to be built 

to a higher standard, but if it is being built in the same footprint 

as the old bridge, why do you have to do a whole NEPA, because 

it is on the same footprint? Now if you are moving the bridge a 

mile away, over land that was never examined, then maybe so. But 

I have always argued, if you are building back on relatively the 

same footprint, why do you even need NEPA? You need a safety 

check. You need safety to make sure that the bridge you are building is stronger. 

We should think about that, a special category. It would be so 

helpful to mayors and Governors that are struggling right now in 

Houston to rebuild, and with all the problems, they do not need 

that. We should think about that. I do not know if you all have 

talked about that. 

Mr. HERRGOTT. We have talked about that extensively, and at its 

core what we were trying to do is realign everyone’s definition of 

success, and it is building the project. And unfortunately, the very 

talented people that work within the agencies, we have failed 

them. We have not set them up for success because we have not 

given them a process to address what is behind me. 

[Points to chart.] 
30 

That is systemic. We can work within existing statutes, and 

along with the Permitting Council, which is institutionalizing best 

practices which helped us to the logical outgrowth, which is One 

Federal Decision, to change the way in which agencies talk to each 

other, at the front of the process. To bring stakeholders in, not just 

for the opt-in projects of the Permitting Council, which is extremely 

important and it has changed the way in which we do business. 

For example, one example, we have the Department of Commerce 

National Marine Fisheries Service who will do an analysis on the 

Twin Span Bridge on salmon, because they are an ocean-faring 

fish. But yet the Fish and Wildlife Service is doing analysis on 

trout because they are river fish and under the jurisdiction of the 

Department of Interior. 

When we talk about resources, it is essential that we collaborate 

and coordinate to ensure that we harmonize those processes, because I do not know how to explain to a taxpayer in Nebraska that 

we wasted an additional $600,000 on two different biological opinions for something that easily could be done simultaneously and 

concurrently. That is what is essential, and that is the lessons 

learned from the Permitting Council, which we have taken to extend onto the rest of the Federal family. And I think the collaborative nature and the one-two punch are essentially what is going 

to help us really demonstrate what your vision was. 

Senator PORTMAN. As you probably know, the Administration is 

proposing a reorganization of government right now, which every 

Administration does, and usually it does not fare very well up here 

because of the jurisdictional problems with our committees. One of 

the reorganization policies maybe comes from you guys, which is 

about fish, and it is about trying to have one agency be responsible 

for both the salmon and the trout, to use your example. That would 

reduce some of the duplication and some of the confusion that people have. I think it is important. 

By the way, you did help, when you were here, I think, on highway projects with regard to rebuilds, not having to go through such 

a laborious process. Correct? But it is a good point. It needs to be 

broadened beyond just that. I do not think it includes bridges, as 

an example. Highway projects and bridges. You may have done 

more than you thought while you were here. 

Senator LANDRIEU. Thank goodness I did something. 

Senator PORTMAN. Yes, you did a lot. 

Senator LANDRIEU. At least I did one thing when I was here. 

Senator PORTMAN. This has been very helpful, and needless to 

say we want to continue to hear from you. Some of you are going 

to send some things for the record of this particular meeting, and 

we will be sure and get those. But, in general, please keep working 

with us. We have, I would say, a nonpartisan approach to this, and 

in some regard we talked about it. It took us several years to just 

get this thing into legislation. Now, it has taken us a few years to 

get it up and going. I think there is an opportunity, with this additional legislation, which I view as common sense, really very modest changes. And I understand, Ms. Goldfuss, your concern about 

part of it with regard to the sunset not applying to every part of 

the new bill. 
31 

But it is really important that we take the lessons we have 

learned and use it to make this even more streamlined, to use one 

of your favorite words. So continue to work with us please, our 

team. We want to move this forward with regard to new legislation, 

and we want to be sure you get your appropriations this year. We 

are going to weigh in on that on a bipartisan basis, and talk about 

the savings, and talk about the incredible return on investment 

this is for the taxpayer. 

Finally, there are 15 days that the record will be open, so this 

gives you not 2 years, but 15 days. To Ms. Terrell’s point that lawyers have to get their briefs in, your briefs need to be in within 15 

days, for the record. We really want to hear from you and continue 

to work with you. 

Thank you for being here today. Thanks for your service. 

Mr. MCGARVEY. I cannot share with Senator McCaskill, but I 

had a full head of hair when this process started. [Laughter.] 

[Whereupon, at 4 p.m., the Committee was adjourned.] 

(33) 

A P P E N D I X 
34 

public, online dashboard and to regularly update that timeline so project 

sponsors and the public can keep track of where they are in the 

permitting process. 

We'll hear some good news today from the Permitting Council and some 

project sponsors about how FAST-41 is working, and how it has begun 

to save time and reduce the cost of covered projects. But we know there 

is more work to be done. 

The President still needs to appoint a permanent Executive Director. I'm 

disappointed that has not happened yet and expressed that view to the 

administration. 

Finaliy, Senator McCaskill and I have introduced a new bill, S. 3017, the 

Federal Permitting Reform and Jobs Act, to improve FAST-41. Most 

cntically, that bill would remove the seven-year sunset on FAST-41. 

It also would allow more projects to apply to be covered, and it would 

set a two-year goal for each project's permitting process. If agencies 

realize they will need longer to permit a project, they can explain why 

and what they will do to mitigate delays. 

And the bill will allow the Permitting Council to consult on non-covered 

projects to share its expertise and help resolve conflicts. 

These arc modest, smart reforms that build on the successes we're 

already seeing. I'm looking forward to hearing from each of our 

roundtable participants today about FAST-41's successes and where we 

can work to improve the permitting process going forward. 

2 
35 

STATEMENT OF 

ALEXANDER HERRGOTT 

ASSOCIATE DIRECTOR FOR INFRASTRUCTURE 

COUNCIL ON ENVIRONMENTAL QUALITY 

June 27,2018 

Senator Portman, Ranking Member McCaskill, and Members of the Committee, thank you for 

the invitation to this roundtable discussion on the federal permitting process for major 

infrastructure projects. We appreciate the opportunity to have a meaningful dialogue on this topic 

as we work toward a shared goal of reducing permitting delays and providing the American 

people the modernized infrastructure they undoubtedly need. 

As many of you know, a major cause of delay has been too many decision makers without 

effective cross agency communication and coordination. Multiple federal agencies oversee 

potentially dozens of federal statutes that project sponsors must navigate before beginning 

construction on a major infrastructure project. Over time, this has created a redundant and often 

inconsistent federal permitting process. Too often, these processes do not share a single 

framework or time frame. For example, a highway project could have as many as 10 different 

federal agencies involved in 16 different permitting decisions, in addition to the state, local, and 

tribal agencies with separate permitting and approval processes. 

The result is a federal permitting process that often takes too long, increases costs, and creates 

uncertainty. We are actively working to address these challenges while ensuring environmental 

protection. With process enhancements and a common-sense, harmonized approach among 

federal agencies, infi·astructure projects will move through the environmental review permitting 

process more efficiently. Federal agency coordination is imperative to long-term process 

refonns throughout these agencies. 

Executive Order 13807 

On August 15,2017. President Trump signed Executive Order 13807 implementing a policy of 

"One Federal Decision." Under One Federal Decision, federal agencies will administer the 

National Environmental Policy Act (NEPA) so that a single Environmental Impact Statement 

(EIS) and a single Record of Decision (ROD) are prepared for all reviewing agencies, and all 

applicable permitting decision processes will be conducted concurrently with the NEPA process 

to ensure that the necessary permitting decisions can be made within 90 days of the ROD. One 

Federal Decision also provides that federal agencies will seek to complete the environmental 

review process within an average of2 years of the publication of a Notice oflntent to prepare an 

EIS. 

One Federal Decision builds on the statutory authorities provided in the Fixing America's 

Surface Transportation Act (FAST Act) to streamline permitting and provides a framework to 
36 

further improve efficient coordination between federal agencies. The FAST -41 process, 

established in Title 41 of the FAST Act, provides a range of tools for large and complex 

infrastructure projects to navigate the federal environmental review and authorization process. 

In brief, FAST -41 established project-specific procedures that may be applicable or available to 

agencies and project sponsors in meeting permitting and review obligations. One Federal 

Decision broadly impacts how agencies conduct and coordinate environmental reviews while 

preserving each agency's statutory authority, independence, and ability to comply with NEPA 

and related statutes, like FAST -41. 

Memorandum of Understanding 

On April9, 2018, President Trump announced that II federal agencies and the Federal 

Permitting Improvement Steering Council (FPISC) signed a One Federal Decision Memorandum 

of Understanding (MOU). These agencies include: Department of the Interior (Interior), 

Department of Agriculture (USDA), Department of Housing and Urban Development, 

Department of Commerce, Department ofTransportation, Department of Energy (DOE), United 

States Army Corps of Engineers, Department of Homeland Security, Environmental Protection 

Agency (EPA), Federal Energy Regulatory Commission (FERC), and the Advisory Council on 

Historic Preservation. Under the MOU, these agencies committed to following the President's 

One Federal Decision framework. In doing so, the agencies agreed to implement an 

unprecedented level of coordination and collaboration in conducting their environmental reviews 

of major infrastructure projects. 

The Council on Environmental Quality (CEQ), in coordination with other components of the 

White House, has convened a federal interagency working group to develop the framework 

under which agencies will implement One Federal Decision. This framework establishes the 

standard operating procedures for how agencies will process environmental reviews from 

beginning to end. The agencies will work together to identify the appropriate level of analysis 

needed to conduct the necessary environmental reviews, synchronize the public engagement, and 

complete other procedural steps to ensure that all necessary decisions can be made within the 

timelines established by Executive Order 13807. 

Agency Action 

To date, agencies have been taking steps to advance One Federal Decision principles, starting 

first with regular interagency working group meetings and collaboration between agencies and 

CEQ to improve interagency coordination and the quality of environmental analysis. Since the 

agencies signed the MOU, CEQ and agency leadership have engaged in numerous meetings on 

agency streamlining efforts to identify and implement policy, process, and regulatory changes 

that include: 

• The Federal Highway Administration signed an agreement with the United States Fish 

and Wildlife Service, the Army Corps of Engineers, EPA, United States Coast Guard, 

and National Oceanic and Atmospheric Administration (NOAA), committing to working 

together to achieve the goals of Executive Order 13807. These agencies collaboratively 

developed a chart coordinating each agency's processes; 

2 
37 

• Interior issued Secretarial Order 3355 and additional guidance that advance the 

department's NEPA-streamlining efforts within Executive Order 13807; 

• The Army Corps of Engineers issued Section 408 policy changes adopting other 

agencies' NEPA documents and issued a policy memorandum operationalizing ''riskinformed decision making" to improve coordination and risk management across 

disciplines; 

• USDA, FERC, DOE, and EPA are improving internal clearance processes along with 

increasing agency capacity for projects with dedicated staff assignments; 

• USDA, the Army Corps of Engineers, NOAA Fisheries and the United States Fish and 

Wildlife Service are expanding the use of time-saving programmatic consultation 

processes; and 

• Agencies will be issuing directives and conducting training at all levels of their 

organizations, from headquarters to field offices, on timetables and plans to implement 

the One Federal Decision policy nationwide. 

Agency Accountability 

The Office of Management and Budget is developing a performance accountability system and 

appropriate performance metrics to ensure that agencies are implementing One Federal Decision, 

including the adherence to lead federal agency permitting timetables. The Administration plans 

to consider agency performance during budget formulation, and agency delays from the 

permitting timetable may be quantified. Key agency personnel also will have accountability and 

performance criteria added to their performance plans to measure their effectiveness in 

processing project permits. 

**** 

Through improved agency coordination, increased transparency and accountability and timely 

decision making, we can improve our infrastructure permitting process and get projects 

completed and to the market faster for the benefit of the American people. 

While CEQ is focused on the development of a better process for all infrastructure project 

permitting, the Federal Permitting Improvement Steering Council is focused on overcoming 

obstacles on a project-by-project basis. My colleague, Angela Colamaria, the acting Executive 

Director of the Permitting Council, will expand further on the implementation of FAST -41 and 

FPISC's role in streamlining the federal permitting process. 

Thank you again for the opportunity to participate in today's discussion. 

3 
38 

STATEMENT OF 

ANGELA COLAMARIA 

ACTING EXECUTIVE DIRECTOR FOR THE FEDERAL PERMITTING 

IMPROVEMENT STEERING COUNCIL (PERMITTING COUNCIL) 

BEFORE THE 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

June 27, 2018 

Senator Portman, Ranking Member McCaskill, and Members of the Committee, thank you for 

the invitation to tbis roundtable discussion on the federal permitting process for infrastructure 

projects. The Permitting Council continues to make significant progress in improving 

transparency, predictability, and accountability in the form of avoided delays in the pem1itting 

process. We are accomplishing this by using the tools provided by the Fixing America's Surtace 

Transportation Act (Pub. L. No. 114-94) (FAST-41). I am grateful for the opportunity to take 

part in this critical discussion on how we can improve the efficiency and timeliness of the 

permitting process. I am also pleased to be able to describe some of the project specific successes 

we have had to date. In fact, the Permitting Council has succeeded in saving FAST-41 projects 

over $1 billion in costs that would have otherwise resulted from avoidable permitting process 

delays. This $1 billion estimate is the result of avoided cost estimates provided by the project 

sponsors for those projects as well as associated public court filings that estimate costs due to 

potential delays. 

FAST -41 Background 

FAST-41 is a voluntary program for eligible large, complex infrastructure projects that provides 

oversight, strengthens cooperation and communication among regulatory agencies, enhances 

transparency, and emphasizes concurrent processing of environmental reviews and 

authorizations. FAST-41 does not modify any underlying federal statutes, regulations or 

mandatory reviews. 

Of the 38 FAST-41 projects currently on the publicly available Permitting Dashboard, 16 have 

completed the Federal permitting process. Anyone can use the Dashboard to view a project's 

schedule and the status of all the environmental reviews and authorizations required for a FAST41 project. The information on the Dashboard is required to be reviewed and updated quarterly, 

at a minimum. 

The Permitting Council uses the Dashboard, in concert with the coordinated project plans (CPPs) 

developed for each FAST -41 project, to keep F AST-41 projects on track and on schedule by: (1) 

breaking down silos across Federal permitting agencies through enhanced coordination, (2) 

ensuring efficiency in the permitting process, and (3) providing oversight and issue resolution. 
39 

Breaking Down Silos throngh Enhanced Coordination 

The Permitting Council creates a more standardized, predictable permitting process through 

enhanced project-specific coordination that ensures multi-agency collaboration for FAST-41 

projects. The Permitting Council agencies have appointed both Council members (DeputySecretary or equivalent) and Agency Chief Environmental Review and Permitting Officers 

(Agency CERPOs) to act as agency leaders to identify and resolve potential impediments to the 

permitting process for FAST -41 projects. 

Since January 2018, my office has scheduled eight in-person meetings with the designated 

Agency CERPOs to discuss projects. My office provided focus areas for discussion based on 

apparent gaps or concerns about tbe CPPs and schedules, as well as any other issues that 

appeared to be unresolved that could result in avoidable delays. Lead agencies coordinated with 

the Agency CERPOS for the cooperating and participating agencies to ensure the appropriate 

agency representatives would be in attendance and would be prepared to participate in in-depth 

project discussion. 

Efficiency in the Permitting Process 

The Permitting Council ensures projects progress through the permitting process in an efficient 

manner while working to identify opportunities to improve internal procedures. My office serves 

as a communication bridge to connect personnel at all levels of government with staff and 

subject matter expertise within or across agencies to make the appropriate connections needed to 

resolve issues. By collaboratively working with the agencies to identify opportunities for 

permitting process improvement, the Permitting Council is able to ensure each project's 

permitting schedule has been optimized. Similarly, by identifying resources across agencies to 

assist with resolving complicated policy questions on a FAST-41 project, the Permitting Council 

is able to ensure such complex issues are elevated to the appropriate staff while ensuring work 

continues in the field office further preventing confusion and unnecessary delays. 

Oversight and Issue Resolution 

Through our oversight, the Permitting Council brings agencies together to ensure fAST-41 

projects receive the most efficient and effective permitting process possible. We accomplish this 

by using the tools provided by F AST-41, including the CPPs, Dashboard, Permitting Council 

representatives (working group, agency CERPOS, and Council members), and the provisions 

surrounding any modifications to the permitting schedule. For example, modifications to the 

permitting schedule of more than 30 days must be approved by my office to prevent undue 

delays and ensure a realistic and concurred-upon schedule has been developed, upon which all 

parties will act moving forward. To date, modifications have been requested for 11 projects- my 

office coordinated with project sponsors and Federal agencies to facilitate communication and 

resolution of the challenges responsible for those schedule modifications. 

My office, the Office of the Executive Director, reduces permitting delays for FAST -41 projects 

by providing the oversight needed to ensure transparency, accountability, predictability, and 

concurrent processing throughout the permitting process. Some examples of my office's role in 

keeping FAST-41 projects on track and on schedule through FAST-41 oversight and issue 

resolution are provided below. 

2 
40 

• My office facilitated cooperation among agencies involved in the Nexus Gas 

Transmission Line to ensure an efficient and timely Section I 06 review under the 

National Historic Preservation Act (Section 106 NHPA). My office worked with the lead 

agency (Federal Energy Regulatory Commission (FERC)), the Advisory Council on 

Historic Preservation (ACHP). and other Permitting Council member agencies to 

determine what information still needed to be provided by the applicant to support 

FERC's completion of the review. My office and Permitting Council member agencies 

cooperated with the project sponsor to facilitate delivery of that information and an 

expedited conclusion to the review, allowing subsequent authorizations to move forward 

and, according to the project sponsor, saving an estimated 6 months and $300 million in 

capital costs to the project. 

• My office's oversight role and involvement led to the successful drafting and 

implementation of a Programmatic Agreement for Section 106 NHPA for two FAST-41 

projects, and supported ACHP in playing a key role in reaching agreement on appropriate 

resolution of key issues with FERC, the U.S. Forest Service (USFS), the National Park 

Service (NPS) and the states that were involved. For one of these projects, Atlantic Coast 

Pipeline, the completion of the Programmatic Agreement allowed other Federal 

permitting actions to move forward. This in turn allowed the permitting process to be 

completed in time to utilize that year's tree clearing window for construction activities, 

preventing a delay of one year. 

• The Mid-Barataria Sediment Diversion project was the first project to apply to the FAST41 process, and is a key example of the successful implementation of Federal-State 

coordination on a FAST-41 project by creating and implementing the first FAST-41 

memorandum of understanding (MOl!). This MOl! established roles and responsibilities 

for both Federal and State agencies, including their specific permitting responsibilities. In 

addition, my office identified complex questions related to National Environmental 

Policy Act (NEP A) implementation not yet resolved by the agencies, and worked with 

the Council on Environmental Quality (CEQ) to provide subject matter expertise to the 

agencies to assist them in determining their next steps. These actions resulted in a 

reduction in the current permitting schedule by nearly two years. 

Permitting Council Policy 

The Permitting Council is using the lessons learned through the work done on FAST-41 projects 

to inform and identify permitting process efficiencies and improvements for all infrastructure 

projects. The Permitting Council includes CEQ and Office of Management and Budget (OMB), 

and the Permitting Council continues to work closely with them on implementation of Executive 

Order 13807 and the One Federal Decision Memorandum of Understanding, which foster an 

unprecedented level of coordination and collaboration in conducting environmental reviews and 

authorizations of major infrastructure projects. 

**** 

3 
41 

Through improved agency coordination, increased transparency and accountability and timely 

decision making, we can ensure f AST-41 projects progress through the permitting process in a 

more predictable way. 

!look forward to continuing to work with you to set the stage for success in year two ofFAST41 implementation (since publication of the CEQ and OMB FAST-41 Implementation Guidance 

document on January 13, 20 17). As I stated earlier, we've saved FAST -41 projects over $1 

billion due to avoided permitting delays, according to estimates provided by project sponsors for 

their projects and associated court filings that estimate costs due to potential delays. Through the 

promotion of accurate and comprehensive permitting schedules, we will continue to enhance 

interagency coordination for these unique and complex infrastructure projects. 

Thank you again for the opportunity to participate in today's discussion. 

4 
42 

BEFORE THE U.S. SENATE COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

Roundtable on "FAST -41 and the Federal Pennitting Improvement Steering Council: Progress 

and Next Steps 

Statement of Joseph Johnson, Executive Director 

June 27,2018 

Good morning, Senator Portman, Ranking Member McCaskill, and distinguished members of the 

Senate Committee on Homeland Security and Governmental Affairs. My name is Joe Johnson 

and I am the Executive Director at the U.S. Chamber of Commerce working on regulatory 

reform issues. The Chamber greatly appreciates the Committee's interest in the vital issue of 

federal penn it streamlining and for the work the Committee did during the !14th 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 (FAST-41). 

My statement details the Chamber's strong support for the federal permit streamlining provisions 

in FAST-41, our members' experience with its implementation since passage, and for the next 

steps to further improve the permitting process you have included inS. 3017, the "Federal 

Permitting Reform and Jobs Act." 

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. In light of Congress's and the current administration's 

commitment to modernizing America's infrastructure by maximizing the use of limited 

resources, FAST-41 is an important tool to construct the necessary permitting reforms to allow 

infrastructure projects of all types to move forward expeditiously while still protecting health and 

the environment. As the Chamber has repeatedly stated, it should never take more than two years 

to complete all federal permits needed for an infrastructure project. 

Background 

The 114'11 Congress passed the "Federal Permitting Improvement Act" as Title 41 of the FAST 

Act, which was signed into law on December 4, 2015 by President Obama. 

FAST-41 established the multi-agency Federal Permitting Improvement Steering Council 

("FPISC"), and established a process that involves designation of a lead agency; schedules for 
43 

projects; coordination between agencies and states when applicable; dispute resolution 

mechanisms; and judicial review. 

The permit streamlining provisions ofFAST-41 bring greater efficiency, transparency, and 

accountability to the federal permitting review process. Some of the key provisions ofFAST-41 

include: 

• 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; 

• Designating 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 restart 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 of limitations to challenge a project review from 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. 

Since the FPISC was established, the Council has been hard at work implementing the permit 

streamlining provisions ofFAST-41. In 2017 the FPISC, the Office of Management and Budget 

(OMB), and the Council on Environmental Quality (CEQ) jointly issued guidance for federal 

agencies on how to carry out their duties under FAST-41. 1 The FPISC also issued 

recommendations to agencies on permit timetables and best practices for agencies to improve 

their permitting process to meet the requirements ofFAST-41. 2 

FAST-41 implementation highlights 

1 See 

https:/lwww.permits.performance.gov/sites/permits.performance.gov/files/docs/Officiai%20Signed%20FAST41 %20Guidance%20M-17 -14%202017-01-13. pdf. 2 See 

https://www.permits.performance.gov/sites/permits.performance.gov/files/docs/FPISC%20Best%20Practices-

%20FINAL%2001182017%283%29.pdf and 

https:l/www.permits.performance.gov/sites/permits.performance.gov/files/docs/FPISC%20Performance%20Sche 

dules-%20FINAL-%2001182017-final.pdf. 
44 

The rollout ofFAST-41 has been a success and an important step in improving the federal 

permitting process. Nevertheless, a few aspects deserve special recognition. The FPISC 2017 

Annual Report to Congress highlights the impressive progress the Council has made in getting 

the structure ofF AST -41 implemented across the participating federal agencies. During 2017, 

agencies showed significant improvement in fully complying with the F AST-41 Implementation 

Guidance that was issued in January. Agencies went from 55% compliance in Quarter 2 of2017 

to 92% by Quarter 4. 3 It is important to keep in mind that the reforms of FAST-41 arc a 

significant change from the status quo for federal agencies, and therefore that implementation of 

the framework is a substantial task that will take time. Under this lens, the expeditious manner in 

which the FPISC, OMB, and CEQ developed and put in place this guidance should be 

commended. 

Members of the U.S. Chamber of Commerce have been supportive ofFAST-41 and have also 

shown support and appreciation for the progress in implementing the framework thus far. A great 

example of the benefits that FAST-41 brings to the permitting process is the transparency 

generated by the permit timetable, as implemented according to the best practices guidance. Our 

members have remarked on how beneficial they find the transparency delivered by the dashboard 

and project timetable. Knowing an expected schedule for various steps in the permitting process 

at the beginning is a significant step forward that pays off over the entire life of the project by 

allowing project sponsors to better coordinate and manage scheduling of contractors, suppliers, 

and resource needs. 

Additionally, many more Chamber members serve as contractors, subcontractors, and suppliers 

in infrastructure development than as project sponsors or co-sponsors. While they may not be 

dealing directly with the permit process, they also benefit from the transparency and certainty 

that a permitting timetable delivers. Simply by reducing the uncertainty of permitting through 

the timetable, coupled with a Lead Agency and the FPISC coordinating and keeping the process 

on track, our members who work on covered projects arc better able to manage resources, reduce 

down time and waste, and ultimately, manage workflows better to get more done, hire more 

employees, and help grow the economy. These are not results that we can easily summarize and 

boil down to a couple simple metrics, but ultimately they are what matters and the reason why 

the Chamber and the business community so strongly support permit streamlining. 

After releasing best practices guidelines in early 2017 to establish benchmarks for agency 

performance in creating and managing project permitting timetables, the FPISC reported in its 

2017 Annual Report to Congress that covered agency performance had improved dramatically in 

2017 and that by the end of the fiscal year, 97% of covered projects had timetables. 4 This is a 

significant achievement in a short period of time, and based on the support that the business 

community has voiced for this step alone, it is important. 

'Federal Permitting Improvement Steering Council- Office of the Executive Director, ANNUAL REPORT TO 

CONGRESS FOR FISCAL YEAR 2017, p. 1 (April13, 2018) available at: 

https ://www. perm its.perform a nce.gov /sites/permits. perfo rma nee .gov /fi I es/ docs/documentation/ 42296/fast -41-

annual-report-congress-fy-2017. pdf. 4 /d. 
45 

Not surprisingly, Chamber members are also highly supportive of the prospect of speeding up 

the permitting process, further limiting uncertainty, and reducing potential delays by shortening 

the statute of limitations on project review challenges to two years. At present, there are few 

concrete examples of how these features ofF AST-41 have paid dividends in speeding up 

covered projects, largely because there simply has not been sufficient time since the framework 

was implemented. However, firms that routinely operate in the industries with covered projects 

are optimistic that over time FAST-41 will produce a significant reduction in permitting 

schedules. The interplay of concurrent perm it reviews, designating a Lead Agency to maintain 

timetable adherence, empowering the FPISC to coordinate. and limiting the time to raise judicial 

challenges to project reviews have the potential to drastically reduce the time it takes to get 

permits and lower uncertainty as to whether permits will ultimately be approved. 

The FP!SC recently announced an early success story in streamlining the permit process with 

FAST-41. The Council announced that they were able to reduce the permitting timetable for the 

Mid-Barataria Sediment Diversion Project in Louisiana by 22 months. While at present this is 

only an isolated case study of fully leveraging the permit streamlining process of FAST-41, it is 

a positive indication that the system works and that we should expect to see the benefits from 

increased reductions in permitting timetables in the near future. 

The early success stories from FAST-41 show that the permit streamlining framework delivers 

the benefits for which it was designed. An important next step is increasing the number of 

covered projects to distribute the benefits more widely. As the early implementation results have 

shown, the process will become better over time as it is refined and becomes more routine for 

agency permitting staff. There is reason to believe that the process will get better and deliver 

even greater benefits. Improving the process further and expanding the scope of eligible projects 

will serve to compound those bene tits, help grow the economy, and allow businesses to create 

more jobs. 

Next steps to improve the permitting process 

Despite the success ofF AST -41 thus far, there remain ways to improve and modernize the 

federal permitting process. The Chamber strongly supports S. 3017, the "Federal Permitting 

Reform and Jobs Act," for the steps it takes to enhance and improve upon the permit 

streamlining provisions ofFAST-4!. The key provisions ofthe bill include: 

• Elimination of the seven-year sunset in F AST-41: The sunset creates a perception that 

F AST-41 is a test case and therefore reduces the incentive for project sponsors to invest 

the time and effort needed to begin using the process. Eliminating the sunset is likely to 

encourage more project sponsors to use the process moving forward. Removing the 

sunset also ensures that the FAST -41 process, a process that works and is improving, can 

continue and serve as the foundation for additional permitting reforms. 
46 

• Expansion of the statutory definition of covered projects: The bill expands the definition 

of covered projects by removing exclusions in the FAST -41 statutory language. The 

expansion will open up FAST-41 to a broader range of infrastructure projects, including 

some important transportation infrastructure projects. While permit streamlining is but 

one step in modernizing U.S. infrastructure, it is a crucial step. Expanding the range of 

projects eligible for FAST-41 leverages the existing framework to quickly and efficiently 

improve infrastructure permitting and help make needed infrastructure expansion and 

modernization a reality. 

• Setting of a two-year goal for permitting covered projects: The bill sets a goal of getting 

covered projects permitted in two years by requiring agencies to submit a plan for 

permitting that adheres to this timetable. If agencies cannot meet that goal they must 

submit reasons as to why it is not possible. The Chamber believes that there is no good 

reason for why any federal permit should take longer than two years to obtain. Two years 

is a reasonable time period that would bring the U.S. into parity with our global economic 

competitors, like Gern1any, Canada, and Australia. 

• Expansion ofFPISC's consulting authority by codifying provisions ofE.O. 13,807: The 

bill codifies provisions ofE.O. 13,807, which grant the FPISC enhanced consultation 

authority. This authority allows the FPISC to act as a facilitator to help coordinate agency 

actions and expands the council's dispute resolution authority. 

Once again, the Chamber strongly supports S. 3017 and believes that codifying in statute these 

key improvements to the permitting process will bring substantial long-term benefits to the U.S. 

economy. 

Conclusion 

The Chamber believes that while FAST-41 is still new and work remains in fully implementing 

it, the benefits are already clear and demonstrate that FAST-41 is the best foundation for 

permitting reform. Our members are supportive of the process and optimistic that further 

improvements and refinements in implementation will deliver impressive results with respect to 

shortening the time it takes to get a permit and adding certainty and transparency to the process. 

Looking forward, the improvements in S. 3017 will further enhance the permitting process and 

arc needed in the near term to ensure that future permitting reforms are built on the framework 

developed under FAST-41. Early successes have shown that the FAST-41 system works. 

Enhancing the system with the commonsense improvements in S. 3017 will allow a broader 

range of projects to take advantage of the increased efficiency and transparency in the permitting 

process and ensure that these advantages continue to be refined and perfected without the clock 

running out on FAST-41. 

In January 2018, the Chamber laid out a four point plan to modernize America's infrastructure 

(ww\v.lctsrebLtildamerica.com). Point three includes permitting reform, of which enhancing the 

usage and effectiveness ofF AST -41 is a key component. 

We look forward to working with this Committee to ensure we have the necessary tools to 

modernize America's infrastructure. 
47 

Statement of Christy Goldfuss 

Senior Vice President for Energy and Environment Policy, Center for American Progress 

Roundtable examining the federal permitting process for major infrastructure projects, 

Senate Committee on Homeland Security and Governmental Affairs 

June 27, 2018 

Introduction 

Thank you, Senators Portman and McCaskill, for inviting me to participate in this important discussion 

about the federal permitting process for major infrastructure projects. What we are talking about today 

should not be political or divisive. Both Republicans and Democrats have sought to improve the process 

by which the Federal Government works to permit major infrastructure projects while ensuring that 

community input is included, and clean air, clean water, and wildlife are protected. 

As Managing Director ofthe Council on Environment Quality (CEQ) under President Obama, I worked 

closely with my colleagues at OMB and NEC at the time to implement the Fixing America's Surface 

Transportation (FAST) Act by standing up the Federal Permitting Improvement Steering Council (FPISC), 

writing its inaugural guidance, and staffing it with talented people that knew how to move the levers of 

government to overcome barriers and achieve greater efficiency in the environmental review process. 

As you know, CEQ is responsible for administering the National Environmental Policy Act (NEPA), which 

allows federal decision-makers to understand the impacts of their actions ahead of time. I supported the 

creation of FPISC and other permitting reforms because I saw first hand the need to coordinate 

agencies, establish milestones, and create transparency so that environmental review can be improved 

where necessary, and not blamed for the burdens of a complicated network of public and private 

requirements. 

Through Title 41 ofthe FAST Act and other recent actions, Congress has given the Federal Government 

the tools to modernize the way it does business. In corporations, it has been well documented that 

highlighting best practices, measuring progress, and tracking metrics leads to better outcomes. 

However, those tested measures only work if the government uses them and builds trust with industry 

to demonstrate that this model will work in the complex government structure. Unfortunately, the 

Trump administration has pushed Congress to expand its authority rather than effectively exercising 

what it already has. 

As a result, I have reservations and concerns about amending the FAST Act to expand the authority of 

the Federal Government without more proof points from implementation of the existing authorities. At 

its core, FAST-41 was written to modernize the permitting process, which includes responding to data 

that show where the problems may exist. The administration has failed to aggressively implement those 

authorities to give you the data you need to address the infrastructure needs of the country. If Congress 

does move forward with amending the FAST Act, however, I have several recommendations on how to 

make those changes additive to other recent steps that Congress has taken and ensure that the 

permitting process continues to protect communities and the air, water, and wildlife on which they 

depend. 

Congress enacted permitting reforms 
48 

Prior to working at CEQ, I was the Deputy Director for the National Park Service (NPS) which gave me a 

front row seat to interagency conflicts and disputes. Without direct oversight from the Secretary of the 

Interior's office, there was little incentive to work through differences and hold agencies accountable to 

making progress. The statutes that each of the agencies were tasked with administering inevitably were 

at odds on occasion, so it took focus and accountability to find solutions that worked under the law. To 

give you a simple example, the Bureau of Land Management's multiple use and sustained yield mission 

at times would conflict with the conservation and preservation responsibilities of the National Park 

Service, and those types of competing responsibilities exist across the government. Therefore, it was 

clear that it would be helpful to have an entity that would support the experts in these agencies with the 

guidance, oversight, and political support necessary to work through conflicts in a timely manner. 

Congress took action to address these permitting challenges three times over the past six yearspassing the Fixing America's Surface Transportation (FAST) Act in 2015, the Water Resources Reform and 

Development Act (WRRDA) in 2014, and the Moving Ahead for Progress in the 21st Century Act (MAPill in 2012. The FAST Act, WRRDA, and MAP-21 contained some of the most significant legislative 

rollbacks of NEPA and the environmental review process in history. The three laws, however, also 

included bipartisan provisions to clarify several permitting requirements and provide the federal 

government with many new tools to expedite review processes without sacrificing environmental 

considerations and community input. 

Federal agencies often coordinate their review processes so that experts on a range of environmental 

impacts or infrastructure types can weigh in on projects' potential outcomes. The FAST Act also provided 

project sponsors with a path to help them identify potential environmental impacts as well as agencies 

with jurisdiction over affected natural, cultural, and historic resources. Thanks to MAP-21 and the FAST 

Act, agencies with jurisdiction now have improved early coordination procedures; clarified roles and 

responsibilities; and dispute resolution practices. Projects must follow a single government-wide project 

schedule and can carry planning-level decisions forward into the NEPA process. 

In 2015, two new offices were established to focus on permitting-the Infrastructure Permitting 

Improvement Center (I PIC) at the Department of Transportation (DOT) and the Federal Permitting 

Improvement Steering Council (FPISC) with an executive director appointed by the President. The FPISC 

was viewed as essential to bringing agencies together to surface interagency disputes and share best 

practices. At the time it was established, the connection to the POTUS and the Executive Office of the 

President (EOP) was viewed as integral to the success of the executive director who would need to build 

relationships with deputy secretaries and staff across at least 13 departments and agencies, while also 

having credibility with project sponsors. From issuing Executive Order 13766 in the early days of the 

Trump administration which confused implementation of permitting reforms to failing to appoint an 

executive director, the Trump administration has not demonstrated acumen in implementing the 

authorities it currently has to expedite permitting. 

Struggles with implementation of permitting reforms 

The Trump administration and others point to the permitting process as the main cause for project 

delays. Existing data show that delays are more often the result of a lack of funding. Recognizing the 

need to further study the causes of project delays, the U.S. Congress directed DOT to establish a publicfacing online tracking system of projects in the permitting process. Project sponsors and the public 
49 

should be able to use the tracking system-known as the Federal Infrastructure Permitting Dashboard to 

expedite projects and understand the true causes of any delays. The Permitting Dashboard is still very 

much a work in progress, with incomplete data and limited mapping capabilities, but it has significant, 

untapped potential. The !PIC, too, is only just getting started. In its Annual Report to Congress, the I PIC 

notes that its "accomplishments this past year have laid the foundation for the time and resource 

efficiencies that DOT expects will soon be realized in the environmental review and permitting of 

infrastructure projects." Like many of the other provisions Congress provided, the Permitting Dashboard 

and the I PIC have not had sufficient time to demonstrate success in expediting project delivery. 

President Trump has also failed to appoint people to key positions that could help accelerate project 

delivery. The Federal Highway Administration, which processes approximately 10 percent of the federal 

government's environmental impact statements in any given year, is still without an administrator. 

While we were pleased to see an Acting Director announced, the FPISC executive director position is still 

vacant. As mentioned above, a political appointee is particularly important in this role to demonstrate to 

departments and agencies the level of priority and commitment from the White House. The same is true 

for project sponsors who may question the legitimacy of the FPISC without political leadership. This 

person would have broad authority to advance the group's mission and move large projects forward. 

The FAST Act allowed FPISC to establish a "fee structure for project proponents to reimburse the United 

States for reasonable costs incurred in conducting environmental reviews and authorizations" for 

certain projects. The FPISC has not yet implemented this initiative, which would help facilitate faster 

reviews at the expense of project sponsors-in this case, private developers. By failing to utilize these 

existing tools, the Trump administration is not advancing the established goals within the agreed-upon 

frameworks of MAP-21, the FAST Act, and WRRDA. 

Lastly, as with any new authority and tool, there needs to be an extensive and rigorous training 

component for subject matter experts across the government on how the new authorities impact their 

work. The Annual Report to Congress for FY2017 from the FPISC shows that each agency has at least one 

updated online training tool, and while that is a start, it will hardly be enough to change behavior across 

the government. When the executive director of the FPISC is appointed, he or she should prioritize 

developing a strong community of practice across the government so that case studies, training tools, 

and data needs can be shared regularly by practitioners. 

Amending the FAST Act to improve the federal permitting process 

As stated above, I have reservations about giving new authorities to untested and unproven government 

entities without greater data and proof points around implementation. However, if the Senate 

Homeland Security and Governmental Affairs Committee (HSGAC) chooses to advance legislation to 

enact more permitting reforms, I respectfully offer several recommendations for your consideration. 

First, the FAST Act, WRRDA, and MAP-21 all contained permitting reforms and changes to environmental 

review that need to be harmonized to make clear which authorities apply to which projects. If 

transportation and water projects qualify to be covered projects under the FAST Act, the same judicial 

review and guidelines must apply to them as other covered projects. 

Next, given that the Trump administration has not kept pace with Congress' appetite to implement 

infrastructure permitting reforms, it would be prudent to keep a sunset date for provisions of FAST-41 

that have yet to be implemented, such as for advancing a preferred alternative or judicial review. This 
50 

will allow for appropriate oversight of untested authorities, while demonstrating strong support for the 

FPISC and the Dashboard by eliminating their sunset date. 

Lastly, I strongly recommend against any consideration of legislated deadlines. Congress has laid out a 

clear path for the administration to address the challenges of permitting infrastructure projects, but it 

requires the administration to do the hard work of governing by addressing challenges and developing 

solutions that work under the law. Little can be gained by forcing under-resourced agencies to develop 

projects faster without the strong backbone of a fully functioning FPISC. This will only lead to more court 

battles and additional stops and starts in permitting timelines as agencies rush reviews and communities 

are cut out of the process. Instead, the thorough implementation of FAST-41 and the other permitting 

reforms will net excellent data for the Committee to truly diagnose any additional problems in process 

and procedure. 

Conclusion 

In conclusion, Congress has acted repeatedly in recent years to address the challenges associated with 

permitting major infrastructure projects. However, the Trump administration has delayed progress in 

achieving the stated goals of FAST-41, WRDA, and MAP-21 by not properly resourcing the newly 

established entities, by not staffing the key positions across the government, and by not investing in the 

technology and data necessary to truly modernize this highly complex process. I thank you again for 

inviting me to speak to you about a top priority issue for all of us, which is addressing the needs of the 

nation's crumbling infrastructure while protecting the air, water, and wildlife on which we all depend. 
51 

North America's Building Trades Unions 

Statement of Sean McGarvey 

President, North America's Building Trades Unions 

Before the 

Committee on Homeland Security and Government Affairs 

United States Senate 

Roundtable on 

FAST-41 and the Federal Permitting Improvement Steering Council: Progress and 

Next Steps 

June 27, 2018 
52 

Good afternoon. Senator Portman, Senator McCaskill, thank you both for your leadership on 

this issue and for convening this roundtable to discuss permitting reform. As president of North 

America's Building Trades Unions, and on behalf of the three million construction workers in 

North America that I proudly represent, thank you for allowing me to join this distinguished 

panel to discuss an issue that directly impacts building and construction trades men and women 

across the nation. Before we begin, I would like to take a very brief moment to make a few 

comments. 

America's labor leaders and businesses agree: the permitting process for major U.S. infrastructure 

projects must continually be modernized to ensure efficiency. safety, accountability. and 

transparency. 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. 

The general problem with the permitting process is this: project owners in public and private 

sectors often confront an overly complex. slow and inconsistent federal permitting process. 

Gaining approval for a new bridge or factory typically involves negotiating a maze of review by 

multiple federal agencies with overlapping jurisdictions and no real deadlines. Usually, 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 efTective approval tor 

years- or, worse, halt a half-completed construction project in its tracks. This problem still needs 

more attention. 
53 

Senators, your bipartisan work and leadership on the Federal Permitting Improvement Act, which 

we were proud to support through several sessions of Congress, demonstrated a steadfast 

commitment to cutting red tape in order to get much needed infrastructure projects moving 

forward. NABTU, and the entire building trades community, was tremendously grateful that 

these efforts were finally enacted and resulted in Title 41 of the FAST Act (FAST-41). Already, 

Title 41 has started streamlining the federal permitting process, providing new hope for 

construction workers project owners and industry leaders across the country that our system can 

be transparent and efficient. 

The reforms instituted in FAST-41 were designed to take steps to rectify the problem. We believe 

the creation of the Federal Permitting Improvement Council was a long-overdue step in the right 

direction. We are confident that 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 

construction owners, contractors, and workers for years. As an organization that relies upon 

standards, we welcome this. Furthermore, by tightening litigation timeframes surrounding some 

permitting decisions, major infrastructure projects may one day no longer be subject to the 

seemingly never-ending cycle of lawsuits project opponents advocate. This new process is 

working not only to the benefit of the construction industry, but also to the nation at large. 

However, as with any program or agency, there is always room for improvement and innovation. 

I commend you on your continued efforts to address this critical work in improving the permitting 

process with your introduction ofS. 3017, the Federal Permitting Reform and Jobs Act. I must 
54 

also acknowledge the Trump Administration's efforts to help alleviate some of the logjams in the 

permitting system as a whole. We have supported the thoughtful steps they've taken to reform the 

system while maintaining the underlying regulations that protect the health and safety of our 

members on the jobsite and the environmental and human impacts of projects on communities 

across the country. 

I know there has been much confusion on the issue of permitting reform versus regulatory reform, 

and it is important to note that while permitting and regulations are intertwined, they are still 

exclusive of one another. We can reform the permitting process without sacrificing the integrity 

of the underlying regulations. We have testified before the Senate on this point, and I want to be 

very clear: North America's Building Trades Unions suppoti responsible regulations that protect 

the environment, public health and worker safety. 

We believe these regulations 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 Jack of certainty and transparency in the process and the unnecessary delay and redundancy 

in the permitting process. These unnecessary barriers coupled with the constant stream of endless 

lawsuits that project opponents rely upon because they cannot defeat a project on the merits of the 

project itself leads to a loss of investment and job opportunities. When projects are tied up in the 

courts. our members are not working, they arc not putting food on the table, and they arc not 

proving for their families. 
55 

North America's Building Trades Unions strongly supported the FAST -41 reforms because they 

lead us toward a path of standardization and finality in the permitting process. That pathway has 

created a floor on which future streamlining efforts can build upon. But more must be done, and 

we are committed to advancing practical, bipartisan solutions to further improve this process. We 

welcome collaboration from all interested parties who are serious about advancing this issue. 

With that, I look forward to this discussion. 
56 

OPENING STATEMENT 

SENATOR MARY LANDRIEU 

WEDNESDAY, JUNE 27TH 

FAST -Act Roundtable 

Senate Homeland Security and Governmental Affairs Committee 

2:30PM 

106 Dirksen Senate Office Building 

Senator Portman, Senator McCaskill, Chairman Johnson and Members of the Committee, thank 

you for allowing me to participate in this roundtable discussion today. As some of you may know, I am a 

Senior Policy Advisor to the Washington, D.C. based law firm, Van Ness Feldman. I appear on behalf of 

our client, the Louisiana Coastal Protection and Restoration Authority (CPRA). I am accompanied by 

Megan Terrell, lead in-house counsel for CPRA on the federal permitting of the Mid-Barataria Sediment 

Diversion Project. Mr. Chairman, I ask that a statement Megan has prepared on behalf of CPRA be 

included in the record of this roundtable discussion. 

I want to thank my friends Senator Portman and Senator McCaskill for sponsoring and obtaining 

passage of the FAST-Act in 2015 and for their continued interest in building on the progress made by the 

FAST-Act by sponsoring S.3017, the Federal Permitting Reform and Jobs Act. Both the current legislation 

and the proposed legislation are important to Louisiana's effort to secure our coast and has expedited 

the permitting of our first billion dollar sediment diversion project. 

As most of you know, Louisiana faces a crisis-level loss of coastal area. Since 1932, when the 

levees on the Mississippi River were completed, the state has lost over 1800 square miles of coastal area 

and the loss continues at a rapid rate. Time is of the essence for us. Fortunately, the people and 
57 

government of Louisiana take this problem seriously and have committed resources to and developed a 

plan to protect and restore our coast. CPRA is responsible for developing and implementing our Coastal 

Master Plan of over 100 projects to be built over the next 50 years. Louisiana has identified $11 billion 

in funding available to the state over the next 15 years that is committed to this effort. With funds 

identified, CPRA is undertaking its first major project, the Mid-Barataria Project, to restore Mississippi 

River sediment to the Barataria Basin- an area that was historically a freshwater wetland but is today 

an open salt water area. The project is sponsored by Louisiana, through the CPRA, and its $1.3 billion 

cost will be paid completely by Louisiana. 

When CPRA first approached the Corps, our lead federal agency, about the time line for 

permitting this project, the Corps indicated that the permitting likely would require 10 years. In late 

2016, Louisiana Governor John Bel Edwards asked the Obama Administration to list this project on the 

FAST-Act dashboard maintained by the permitting council. In March, 2017, at a public meeting of CPRA 

in New Orleans, the Corps stated that at least 6 years would be required to permit this project. Neither 

time line was acceptable to Louisiana in light of our daily continuing land loss- a football field on 

average every hour and a half. 

Fortunately, the FAST-Act was in place and the Trump Administration adopted the FAST-Act as 

its vehicle for expediting the permitting of major infrastructure projects. The President, on August 15, 

2017, issued Executive Order EO 13807 that further implemented the FAST-Act and adopted a two year 

time line as the goal for permitting projects on the dashboard. In September, we began negotiating with 

CEQ and the FAST-Act Permitting Council a Memorandum of Agreement under the FAST-Act and the 

Executive Order regarding the permitting process for the Mid-Barataria Project. 

2 
58 

In January, 2018, we achieved the first MOU between a state and the federal government under 

the FAST-Act and also under the Executive Order. The MOU established the framework for the state 

agencies and federal agencies to work together to expedite the permitting of the Mid-Barataria Project. 

We have not yet achieved the two year time line goal established by the President's Executive 

Order. However, the MOU has made a substantial positive different in the permitting of this project. 

Megan addresses the benefits of the FAST-Act on this project in the CPRA statement for the record of 

this hearing. Megan is prepared to answer your questions regarding how the FAST-Act has worked in 

this case. The FAST-Act, the amendments that are being proposed to the FAST-Act and future 

permitting improvements that we envision will allow Louisiana to move forward expeditiously with 

projects to protect and restore our coast. 

Thank you again for the FAST-Act and for the opportunity to appear before you today. 

3 
59 

U.S. Senate Homeland Security and Governmental Affairs Committee 

Permanent Subcommittee on Investigations 

Roundtable Discussion 

Washington D.C. 

June 27, 2018 

Written Statement of 

Jolene S. Thompson, 

Executive Vice President, American Municipal Power, Inc. (AMP) 

Executive Director, Ohio Municipal Electric Association (OMEA) 
60 

Introduction 

Good morning. My name is Jolene Thompson. I am the Executive Vice President 

of American Municipal Power, Inc. (AMP) and Executive Director of the Ohio Municipal 

Electric Association (OMEA). I am pleased to have the opportunity to appear before you 

to discuss AMP's experience with the Federal Permitting Improvement Steering Council 

and FAST-41 process and want to express our appreciation for 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. 

On September 7, 2017, the CEO and President of American Municipal Power, Inc. 

(AMP) testified before the U.S. Senate Homeland Security and Governmental Affairs 

Committee, Permanent Subcommittee on Investigations, to discuss the importance of 

reasonable, timely and cost-conscious permitting of generation projects, as well as the 

Federal Permitting Improvement Steering Council (FPISC) and FAST-41 process. Mr. 

Gerken's testimony focused on the licensing and permitting process for AMP's 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 USAGE Gallia Locks and Dam on the Ohio 

River, as well as provided AMP's unique perspective on infrastructure development and 

regulatory processes given that we recently completed the largest development of new 

run-of-the-river hydropower generation in the United States. This effort consisted of four 

new projects located in Kentucky and West Virginia at existing U.S. Army Corps of 

Engineers (USAGE) dams along the Ohio River, totaling more than 300 megawatts (MW) 

and representing 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. (R.C. Byrd would join new and existing 

hydropower projects in AMP and AMP member portfolios registering more than 600 MW 

of hydropower in the region.) 

AMP's RC Byrd hydropower project is one of the 34 projects in the initial FPISC 

inventory of covered projects. This written statement provides an update on the RC Byrd 

hydropower project since Mr. Gerken's testimony in September of last year, as well as 

AMP's experience with the FPISC process and recommendations based upon that 

experience for improvements for your consideration. I have appended Mr. Gerken's 

testimony hereto for reference. 

Backgroynd 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. 

0 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 today. Our four projects 

are located at existing U.S. Army Corps of Engineers (USAGE) dams along the Ohio 

River. 
61 

Hydropower projects are expensive to plan for and build, typically beginning as 

above-market resources; however, their operational, economic and environmental 

attributes make hydropower a good investment in the long term. 

o 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 decqde. 

Cl 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 and sometimes duplicative permitting by the USACE 

and state resource agencies. 

AMP's Experjence 

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, like the ability to provide baseload power 

(unlike many other renewable resources); the lack of fuel risk, emissions and waste 

streams; and, long life span (80 to 100 years); the value of the investment is clear even 

in the early years. 

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 darn operations, which amounts to an additional $900,000 a year 

from our projects. 

Hydropower is unique compared to other infrastructure projects. First, in our 

region, hydropower projects are limited from a practical standpoint to existing dams and 

the generation capacity are finite. Additionally, hydropower projects on federal locks and 

dams are subject to multiple duplicative and extremely arduous regulatory approval 

processes. 

While we understand the need to balance environmental protection with economic 

development, and anticipate that there will be some bumps along the road, AMP has 

found that regulatory timelines do not align efficiently across the numerous required 

permits, various agencies and different jurisdictions. AMP's RC Byrd project, thus far, 

has served as an example of the regulatory challenges of hydropower projects. 
62 

Licensing for the R.G. 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, 

FERG issued the final license, with the delay largely due to issues raised by the USAGE. 

The time from initial application to final approval from regulatory agencies can best be 

described as a gauntlet, taking a decade and costing millions of dollars. 

During the FERG licensing process, although FERG is the lead agency, the public 

and mandatory conditioning agencies, including State and Federal Fish and Wildlife 

Service (FWS) agencies, are consulted 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 actively 

participates in the FERG licensing process, including the development of the National 

Environmental Policy Act (NEPA) environmental assessment for the Project. The USACE 

uses this authority to Influence the direction and extent of FERC license articles. Through 

a Memorandum of Understanding (MOU) with the USACE, FERC includes a series of 

license articles in licenses that were created to help protect the USACE navigation 

interests established in the Rivers and Harbors Act of 1899. The articles also include a 

requirement that the licensee provide power for the USACE dam for the term of the 

license. 

In spite of the active participation of the conditioning agencies throughout the 

FERC licensing process, after the FERC license process has been completed, the 

USAGE has several additional 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 

USACE. The USACE 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 

USACE. 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 USACE 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. 

USACE 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 USACE Headquarters. In our experience, there is wide variability 
63 

between the District evaluations. For example, some Districts will defer to FERC licensebased 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 conduct a repetitive evaluation of these same criteria and reach different conclusions. 

In the case of R.C. Byrd, despite FERC's Environmental Assessment (EA) and 

concurrence by FWS agencies, the USAGE stated that they would pursue the same 

environmental issues previously 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 USAGE permitting. 

In addition to the FERC license and the USAGE'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. 

B.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. 

As described in Mr. Gerken's testimony, AMP spent years on permitting this project. 

On July 14, 2014, FERC issued a draft Environmental Assessment. Shortly 

thereafter, a stalemate between AMP and FERC on tile one hand and USAGE and 

USFWS on the other began as a result of a disagreement about the necessary timing of 

a Physical Hydraulic Model Study, estimated to cost $1-$2 million. USFWS and USAGE 

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 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. The impasse resulted in USFWS's inability to draw a conclusion on 

whether the project would adversely affect mussels and bats. 
64 

Much of 2016 was spent gathering and submitting additional information to FERC 

in an attempt to address USFWS and USACE 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. 

Concurrent with this process and stalemate, AMP's experience with the FAST-41 

process began on September 22, 2016, when R.C. 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 R.C. Byrd. We also exchanged 

information with Senate staff who were following the process. 

For reasons AMP attributes to the new visibility on the RC Byrd project as a result 

of being added as a FPISC covered project, after a lengthy exchange, concurrence was 

reached between FERC 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. This decision was facilitated by FAST-41's efforts 

to encourage FERC to make a decision. 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 in\Jicated 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. Due to 

disagreements with FERC's conclusions, USACE withdrew support of FERC's 

determination and explained that USACE would address the same issues through the 

mandatory USACE 404 and 408 permit process to USACE's satisfaction. 

As noted above, the final license was received on August 30, 2017. AMP's 

economic commitment to this project now exceeds $4 million. 

For the reasons just described, although the FAST·41 Committee's permit and 

license processing guidance has been helpful, our experience places the value of FAST41 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 strongly encourage the committee to continue its efforts 

and not allow it to sunset. 

Recommendations 

Once AMP received the license, AMP began reviewing its obligations to comply 

with each license article, many of which require significant and ongoing coordination with 

the conditioning agencies. One of the standard license articles obligates the licensee to 

enter into an agreement with the USACE to coordinate plans tor site access and activities 

within 90 days from the issuance of the license. Specifically, referred to as a 

Memorandum of Understanding (MOU), the agreement identifies the location of the 
65 

facility and the study and construction activities, and terms and conditions under which 

studies and construction will be conducted. Importantly, other license obligations are 

contingent upon completion of the MOU. Specifically, AMP cannot begin the required 

Physical Hydraulic Modeling Study and the Sediment Transport Modeling Plan prior to 

completion of the MOU because AMP is not permitted to begin the initial core drilling 

without the MOU. Without the core drilling, potential powerhouse locations cannot be 

determined. Without a potential powerhouse location, any hydraulic studies and the 

impact on mussel beds could also not be determined. 

AMP took the initiative to draft an initial MOU and sent it to the USACE Huntington 

District for their review on October 2, 2017, following FERC license issuance. After 

repeatedly requesting a response, USACE Huntington District sent proposed changes to 

the October 2017 draft on June 20, 2018. 

The current license schedule does not require the MOU to be completed until 

November 28, 2018 - the same day the Physical Hydraulic Modeling Study and the 

Sediment Transport Modeling Plan are due to be filed with the Commission. 

This results in a schedule that is impossible to meet and is illogical at best, 

particularly given that it took over ten years for AMP to obtain the License but was given 

only one year from the License issuance to complete all of the major pre-construction 

requirements. 

AMP has requested extensions of time that reflect a more reasonable timelrame 

tor completion but FERC rejected most of AMP's requests and has limited the extensions 

to November 28, 2018. To be clear, even if AMP had proceeded to undertake the 

Physical Hydraulic Modeling Study and the Sediment Transport Modeling Plan without 

USACE's agreement, which would have resulted in a license violation, AMP could not 

have completed the studies required by November 28, 2018. 

The point in describing this post-licensing Catch-22 here is to highlight the 

importance of continuing the FIPSC process into the USACE permitting phase, 

particularly for hydropower projects, like RC Byrd. Accordingly, extending the FIPSC 

process beyond licensing is AMP's first recommendation for process improvement. 

Additionally, AMP understands that FAST-41 was designed to improve the 

timeliness, predictability, and transparency of the federal environmental review and 

authorization process for covered infrastructure projects and believes from its experience 

that FAST-41 has largely been successful. 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. Moreover, the 

Permitting Dashboard timeline may reflect a delay caused by a dispute, as happened on 

RC Byrd with regard to the EA, without any formal process to resolve the dispute. 
66 

Accordingly, to further improve the process, AMP strongly recommends that the 

FIPSC process be broadened to identify licensee and inter-agency disputes and include 

some authority to settle disputes. 

One avenue for dispute resolution, and a key feature of S. 1460, the Energy and 

Natural Resources Act of 2017, would be to designate FERC as the lead agency for all 

license and permit 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 and, most importantly, empower 

FERC to serve as the arbiter of disputes between a licensee and conditioning agencies. 

Although license articles indicate that FERC will resolve disputes, we have not 

found that to be the case in practice. Specifically, when AMP disputed an obligation that 

the USAGE Huntington District demanded be included in an MOU for AMP's Willow Island 

hydropower project regarding dissolved oxygen monitoring that exceeded the license 

requirements regarding the same, AMP requested that FERC resolve the dispute. FERC 

was reluctant to direct another federal agency to adhere to the terms of the license. FERC 

indicated that no other licensee had ever invoked the license dispute resolution provision 

and FERC did not have a timely process in place. Empowering FERC as the lead agency, 

requiring FERC to develop an efficient dispute resolution process and providing FERC 

the authority to actually resolve disputes would be a profound change that will have a 

direct impact on hydropower infrastructure projects. 

This could allow FERC to 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. 

Conclusion 

In closing, 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. AMP strongly supports continuation of 

the FAST-41 program as well as expanding the process to cover permitting in addition to 

licensing, designating FERC as the lead agency, and empowering FERC to effectively 

and efficiently resolve disputes. This would help facilitate hydropower infrastructure 

development ensuring that new resources of all types can be brought online in an 

economical and timely manner through streamlining the regulatory process, eliminating 

redundancies, and providing developers and investors with added certainty. 

Thank you again for providing me with the opportunity to appear before you today. 

I would be happy to respond to any questions. 
67 

Apr. 24, 2007 

May 30,2007 

Apr. 11, 2008 

Jun.17, 2009 

Aug. 7, 2009 

Oct.1, 2009 

Feb. 19, 2010 

Mar. 12, 2010 

Jun. 22, 2010 

Jul. 15, 2010 

Jul. 17,2010 

Aug. 17, 2010 

Oct. 12,2010 

Oct. 21, 2010 

Nov.S, 2010 

Nov. 10, 2010 

Feb. 11, 2011 

Feb. 11, 2011 

Mar. 28, 2011 

Apr.11, 2011 

May4, 2011 

Jul.19, 2011 

Nov. 17, 2011 

June 25, 2018 

RC Byrd Time!ine 

Preliminary Permit Application (PPA) filed by the Wadsworth, Ohio (AMP member) 

FERC notices Wadsworth PPA and competing PPAs. 

FERC issues Preliminary Permit (PP) to Wadsworth 

AMP files Notice of Intent and Preliminary Application Document (PAD) with FERC 

FERC notice of commencement of proceeding and grants AMP use of the Traditional Licensing 

Process 

AMP holds Joint Agency and Public Meeting on Project 

AMP holds consultation meeting with ODNR at their offices 

EA Engineering, Science and Technology submits "Freshwater Mussel Survey of the Ohio River at 

RC Byrd Lock and Dam" report to ODNR 

Meeting to discuss Project studies and Baseline Fish & Water Quality Surveys (attendees 

included: WVDNR, ODNR, USACE, USFWS, AMP, MWH Global, and EA Engineering) 

USFWS responds w/ comments to Freshwater Mussel Survey Report; recommend Best 

Management Practices used during construction and operation activities associated with Project 

EA Engineering responds to USFWS and requests further information regarding endangered 

species within Project vicinity 

USFWS issues letter regarding endangered species in vicinity of Project 

Bat species inventory is submitted to ODNR 

Bat species inventory is submitted to USFWS (OH) 

Bat species inventory is submitted to USFWS (WV) 

Bat species inventory is submitted to WVDNR 

AMP files Draft FERC License Application for RC Byrd 

USFWS responds with comments on Bat Species Inventory at Project- No Further Action (NFA) 

necessary 

Public meeting with Landowners 

Meeting to discuss comments on Draft License Application {attendees included: WVDNR, ODNR, 

USACE, USFWS, AMP, MWH Global, EA Engineering, Ohio Power Siting Board] 

AMP files Final License Application with FERC 

FERC Notices Application and solicits additional study requests 

USFWS issues letter to FERC regarding response to Notice ofTendering of Application; 

Additional Study Requests for the Project 

AMP submits 401 application to WVDEP 

AMP files all additional information requested by FERC 
68 

Dec. 12, 2011 

Jan. 4, 2012 

Feb. 7, 2012 

Feb. 27, 2012 

Mar. 5, 2012 

Mar. 27, 2012 

Mar. 28, 2012' 

July 11, 2012 

Aug. 9, 2012 

Aug. 20, 2012 

Oct. 15, 2012 

Oct. 18, 2012 

Oct. 23, 2012 

Nov. 30, 2012 

Dec. 12, 2012 

Dec. 17, 2012 

Dec 21, 2012 

Feb. 28, 2013 

Nov. 21, 2013 

Jul. 8, 2014 

Jul. 11, 2014 

Jul. 24, 2014 

Aug. 6, 2014 

Aug. 7, 2014 

June 25, 2018 

AMP submits 401 application to OEPA 

OEPA states that 401 appllcatlon is incomplete and requests additional information 

FERC issues acceptance of application 

FERC issues Seeping Document 

AMP submits letter to USFWS (WV) regarding FERC information request- rapt or habitat in 

vicinity of proposed transmission line 

USFWS (WV) responds to AMP's letter requesting information regarding raptor habitat -letter 

states USFWS does not have any data on bald eagle/other raptor species within proposed 

Project area 

FERC Public Seeping meeting 

Meeting with ODOT on State Route 7 relocation 

AMP submits additional information to OEPA re: 401 application 

FERC issues Revised Scoping Document 

FERC issues Ready for Environmental Analysis (REA) Notice and requests comments 

AMP responds to ODNR regarding 401 certification 

AMP reapplies to WVDEP for 401 certification 

AMP submits proof of requests for Ohio and WV 401 certification to FERC 

WVDNR submits preliminary terms & conditions in accordance with 10(j) 

ODNR comments on License Application in accordance with lO(j) 

AMP responds to WVDNR and OEPA lOU) comments 

AMP forwards FERC letter acknowledging OEPA waiver of 401 certification 

AMP informs FERC that WVDEP has waived 401 certification 

FERC Issues Draft Environmental Assessment for comment 

FERC asks for USFWS concurrence on Draft Environmental Assessment 

FERC provides AMP with Programmatic Agreement with Corps 

US Department of Interior (USDOI) responds to FERC regarding Draft Environmental Assessment 

with recommendations for Best Management Practices 

AMP files comments to the Draft Environmental Assessment 

WVDNR comments on Draft Environmental Assessment 

USACE submits comments to Draft Environmental Assessment 

ODNR issues comments to Draft Environmental Assessment 

USFWS {WV) issues comments to Draft Environmental Assessment regarding endangered 

species 
69 

Aug, 19, 2014 

Aug, 22, 2014 

Sept. 3, 2014 

Nov, 23, 2014 

Jan. 13, 2015 

Jan, 22, 2015 

Jan. 23, 2015 

Jan. 28, 2015 

Feb. 26, 2015 

Mar, 11, 2015 

Apr. 9, 2015 

Jun. 3, 2015 

Jun. 23, 2015 

Jul. 31, 2015 

JuL 17, 2015 

Apr. 28, 2016 

May 11, 2016 

May 13,2016 

Jun. 16, 2016 

Jun. 24, 2016 

Jun. 27, 2016 

JuL 12, 2016 

Aug. 9, 2016 

Sept. 20, 2016 

Sept. 27, 2016 

Oct 17, 2016 

Nov. 4, 2015 

June 25, 2018 

USACE Huntington issues letter withdrawing comments to Environmental Assessment 

USACE issues letter on programmatic agreements to FERC 

USEPA comments on Environmental Assessment 

WVDNR states intent to issue 401 certification during 404 process 

USACE Huntington issues letter stating Environmental Assessment did not address all of its 

concerns and says the concerns will have to be addressed during their 404/408 permitting 

USACE issues letter on Draft Environmental Assessment 

FERC issues Final Environmental Assessment 

FERC asks for concurrencejrom. USFWS on Final Environmental Assessment 

USFWS responds to FERC on FinaiEnvironmerital Assessment 

FERC requests formal consultation with the USFWS regarding mussels 

USFWS states they will not begin formal consultation process until more information is received 

FERC holds conference call with all parties 

AMP files Mussel and Bat study information with FERC and agencies 

USFWS responds to draft Mussel and Bat conservation plans 

Ohio State Historic Preservation Office (OSHPO) forwards signed Programmatic Agreement to 

FERC 

FERC holds conference call with all parties 

FERC requests recent information from WVDNR on presence of listed bat species in vicinity of 

project; WVDNR responds saying there are no know records for the species at proposed Project 

site 

FERC provides summary of teleconference call of April 28, 2016 

USFWS issues letter to FERC regarding status of endangered species consultation and additional 

information needs 

USDOI/USFWS motions for late intervention before FERC 

USFWS issues letter to FERC- Request of USFWS to reserve Federal Power Act Section 18 

Authority to Prescribe Fishways 

AMP request FERC take action that data provided is sufficient and FERC should not allow its 

proceedings to be indefinitely delayed 

FERC issues notice granting late intervention to USFWS 

FERC holds another conference call with all parties 

Corps provides data regarding known areas of effect on mussels 

AMP provides bat study data to agencies and FERC 

FERC-CRO provides inspection report 
70 

Nov. 17, 2016 

Nov. 22, 2016 

Dec 1, 2016 

Dec. 2, 2016 

Dec. 29, 2016 

Feb. 3, 2017 

Mar. 3, 2017 

Mar. 16, 2017 

Jun.l, 2017 

Jun. 9, 2017 

Jun. 14, 2017 

Jun. 19,2017 

Aug. 23, 2017 

Aug. 30, 2017 

Oct. 2, 2017 

Oct 3, 2017 

Oct. 13, 2017 

Nov. 28, 2017 

Feb. 26, 2013 

Mar. 15, 2018 

Mar. 15, 2018 

June 25, 2018 

FERC requests additional data 

USFWS issues additional letter on Bats and Mussels 

FERC Issues letter asking for AMP's response to USFWS letter of November 22; 2016 

AMP responds with data regarding mussels 

AMP provides responses to FERC and USFWS letters 

FERC issues letter to USFWS requesting concurrence wfth endangered species determinations 

stating "we conclude that issuing an original license for the proposed project, with our 

recommended measures, would not be likely to adversely affect the endangered Indiana bat. 

Therefore, we do not believe that formal consultation is required." 

USFWS disagrees with FERC assessment regarding mussels stating ", .. federally listed mussels. 

Therefore, the Service does not concur with your determination that the project is not likely to 

adversely affect federally listed mussels and we agree that the project should proceed through 

the formal consultation process. N 

FERC Issues letter to USFWS stating its Environmental Assessment addressed USFWS comments. 

FERC asks for concurrence by April 19, 2017 in regard to the Northern Long Eared Bat 

USFWS issues a Draft Biological Opinion to the FERC and the USACE and concluded: 

"After reviewing the current status of the species1 the environmental baseline for the action 

area, the effects of the proposed actions, and the cumulative effects, it is our biological opinion 

that the R.C Byrd Hydroelectric Project and the Corps' Navigation Channel Dredging 

Maintenance Project} as proposed, are not likely to jeopardize the continued existence of the 

fanshell, pink mucket pearly mussel, sheepnose, and snuffbox. No critical habitat has been 

designated for these species; therefore, none will be affected." 

AMP issues a response to the USFWS Biological Opinion and agrees with most but objects to 

perpetual water monitoring including dissolved oxygen, temperature and total dissolved gases. 

FERC comments on USFWS Draft Biological Opinion 

USFWS issues Final Biological Opinion 

FERC issues the signed copies of the executed programmatic agreement for Archaeological 

compliance with the Historic Preservation Act 

FERC issues a license after 10 years and 131 days from the PAD submission, 

AMP Submits draft MOU to the USACE. 

AMP files requests for extension of time for Articles 305, 306, 308, 310 with FERC. 

AMP submits Exhibit F Drawings with FERC. 

AMP files Exhibit G drawings with FERC. 

AMP files requests for extensions of time with FERC for near term License articles. 

AMP files supplemental information with FERC regarding license extensions. 

AMP Staff meets with FERC Staff for a license Transition Meeting. 
71 

Apr. 19, 2018 

May31, 2018 

Jun. 20, 2018 

Jun. 21, 2018 

June 25, 2018 

FERC Order grants and denies certain requests for extension of time. 

Following a 30-day consultation period with state and federal agencies, AMP submits revised 

extension request for Articles 403 and 408. 

The USACE Huntington provides comments to the draft MOU. 

FERC Order approving revised Exhibit G drawings. 
72 

Apri124, 2007 

May 30, 2007 

April11, 2008 

June 17, 2009 

Aug. 7, 2009 

Oct. 1, 2009 

Feb. 19, 2010 

Mar. 12,2010 

June 22, 2010 

July 15, 2010 

July 17, 2010 

Aug. 17, 2010 

Oct. 12, 2010 

Oct. 21, 2010 

Nov. 5, 2010 

Nov. 10, 2010 

Feb. 11, 2011 

Feb. 11, 2011 

March 28, 2011 

April11, 2011 

May4, 2011 

July 19, 2011 

Nov. 17, 2011 

August 30, 2017 

RC Byrd Timeline (FERC Project No. 12796) 

Preliminary Permit Application (PPA) filed by the Wadsworth, Ohio (AMP member) 

FERC notices Wadsworth PPA and competing PPAs. 

FERC issues Preliminary Permit (PP) to Wadsworth 

AMP files Notice of Intent and Preliminary Application Document (PAD) with FERC 

FERC notice of commencement of proceeding and grants AMP use of the Traditional licensing 

Process 

AMP holds Joint Agency and Public Meeting on Project 

AMP holds consultation meeting with ODNR at their offices 

EA Engineering, Science and Technology submits "Freshwater Mussel Survey of the Ohio River at 

RC Byrd Lock and Dam" report to ODNR 

Meeting to discuss Project studies and Baseline Fish & Water Quality Surveys (attendees 

included: WVDNR, ODNR, USACE, USFWS, AMP, MWH Global, and EA Engineering) 

USFWS responds w/ comments to Freshwater Mussel Survey Reporti recommend Best 

Management Practices used during construction and operation activities associated with Project 

EA Engineering responds to USFWS and requests further information regarding endangered 

species within Project vicinity 

USFWS issues letter regarding endangered species in vicinity of Project 

Bat species inventory is submitted to ODNR 

Bat species inventory is submitted to USFWS (OH) 

Bat species inventory is submitted to USFWS (WV) 

Bat species inventory is submitted to WVDNR 

AMP files Draft FERC License Application for RC Byrd 

USFWS responds with comments on Bat Species Inventory at Project- No Further Action (NFA) 

necessary 

Public meeting with landowners 

Meeting to discuss comments on Draft license Application (attendees included: WVDNR, ODNR, 

USACE, USFWS, AMP, MWH Global, EA Engineering, Ohio Power Siting Board) 

AMP files Final License Application with FERC 

FERC Notices Application and solicits additional study requests 

USFWS issues letter to FERC regarding response to Notice of Tendering of Application; 

Additional Study Requests for the Project 

AMP submits 401 application to WVDEP 

AMP files all additional information requested by FERC 
73 

Dec. 12, 2011 

Jan. 4, 2012 

Feb. 7, 2012 

Feb. 27, 2012 

Mar. 5, 2012 

Mar. 27, 2012 

Mar. 28, 2012 

July 11, 2012 

Aug. 9, 2012 

Aug. 20, 2012 

Oct. 15, 2012 

Oct. 18, 2012 

Oct. 23,2012 

Nov. 30, 2012 

Dec. 12, 2012 

Dec. 17, 2012 

Dec 21, 2012 

Feb. 28, 2013 

Nov. 21, 2013 

July 8, 2014 

July 11, 2014 

July 24, 2014 

Aug. 6, 2014 

Aug. 7, 2014 

August 30, 2017 

AMP submits 401 application to OEPA 

OEPA states that 401 application is incomplete and requests additional information 

FERC issues acceptance of application 

FERC issues Scoping Document 

AMP submits letter to USFWS (WV) regarding FERC information request- raptor habitat in 

vicinity of proposed transmission line 

USFWS (WV) responds to AMP's letter requesting information regarding raptor habitat -letter 

states USFWS does not have any data on bald eagle/other raptor species within proposed 

Project area 

FERC Public Seeping meeting 

Meeting with ODOT on State Route 7 relocation 

AMP submits additional information to OEPA re: 401 application 

FERC issues Revised Seeping Document 

FERC issues Ready for Environmental Analysis (REA) Notice and requests comments 

AMP responds to ODNR regarding 401 certification 

AMP reapplies to WVDEP for 401 certification 

AMP submits proof of requests for Ohio and WV 401 certification to FERC 

WVDNR submits preliminary terms & conditions in accordance with lO(j) 

ODNR comments on License Application in accordance with 10(j) 

AMP responds to WVDNR and OEPA 10(j) comments 

AMP forwards FERC Jetter acknowledging OEPA waiver of 401 certification 

AMP informs FERC that WVDEP has waived 401 certification 

FERC Issues Draft Environmental Assessment for comment 

FERC asks for USFWS concurrence on Draft Environmental Assessment 

FERC provides AMP with Programmatic Agreement with Corps 

US Department of Interior (USDOI) responds to FERC regarding Draft Environmental Assessment 

with recommendations for Best Management Practices 

AMP files comments to the Draft Environmental Assessment 

WVDNR comments on Draft Environmental Assessment 

USACE submits comments to Draft Environmental Assessment 

ODNR issues comments to Draft Environmental Assessment 

USFWS (WV) issues comments to Draft Environmental Assessment regarding endangered 

species 
74 

Aug. 19, 2014 

Aug. 22, 2014 

Sept. 3, 2014 

Nov. 23, 2014 

Jan, 13, 201S 

Jan. 22, 2015 

Jan. 23, 2015 

Jan. 28, 2015 

Feb. 26, 2015 

Mar. 11, 2015 

Apr. 9, 2015 

June 3, 2015 

June 23, 2015 

July 31, 2015 

July 17, 2015 

Apr. 28, 2016 

May 11,2016 

May 13,2016 

June 16, 2016 

June 24, 2016 

June 27, 2016 

July 12, 2016 

Aug. 9, 2016 

Sept. 20, 2016 

Sept. 27, 2016 

Oct. 17,2016 

Nov. 4, 2015 

August 30, 2017 

USACE Huntington issues letter withdrawing comments to Environmental Assessment 

USACE issues letter on programmatic agreements to FERC 

USEPA comments on Environmental Assessment 

WVDNR states intent to issue 401 certification during 404 process 

USACE Huntington issues letter stating Environmental Assessment did not address all of its 

concerns and says the concerns will have to be addressed during their 404/408 permitting 

USACE issues letter on Draft Environmental Assessment 

FERC issues Final Environmental Assessment 

FERC asks for concurrence from U5FW5 on Final Environmental Assessment 

USFWS responds to FERC on Final Environmental Assessment 

FERC requests formal consultation with the USFWS regarding mussels 

USFWS states they will not begin formal consultation process until more information is received 

FERC holds conference call with all parties 

AMP files Mussel and Bat study information with FERC and agencies 

USFWS responds to draft Mussel and Bat conservation plans 

Ohio State Historic Preservation Office (OSHPO) forwards signed Programmatic Agreement to 

FERC 

FERC holds conference call with all parties 

FERC requests recent information from WVDNR on presence of listed bat species in vicinity of 

project; WVDNR responds saying there are no know records for the species at proposed Project 

site 

FERC provides summary of teleconference call of April 28, 2016 

USFWS issues letter to FERC regarding status of endangered species consultation and additional 

information needs 

USDOI/USFWS motions for late intervention before FERC 

USFWS issues letter to FERC- Request of USFWS to reserve Federal Power Act Section 18 

Authority to Prescribe Fish ways 

AMP request FERC take action that data provided is sufficient and FERC should not allow its 

proceedings to be indefinitely delayed 

FERC issues notice granting late intervention to USFWS 

FERC holds another conference call with all parties 

Corps provides data regarding known areas of effect on mussels 

AMP provides bat study data to agencies and FERC 

FERC-CRO provides inspection report 
75 

Nov. 17,2016 

Nov. 22, 2016 

Dec 1, 2016 

Dec. 2, 2016 

Dec. 29, 2016 

Feb. 3, 2017 

Mar. 3, 2017 

Mar. 16, 2017 

June 1, 2017 

June 9, 2017 

June 14, 2017 

June 19, 2017 

August 23, 2017 

August 30, 2017 

August 30, 2017 

FERC requests additional data 

USFWS issues additional letter on Bats and Mussels 

FERC Issues letter asking for AMP's response to USFWS letter of November 22, 2016 

AMP responds with data regarding mussels 

AMP provides responses to FERC and USFWS letters 

FERC issues letter to USFWS requesting concurrence with endangered species determinations 

stating "we conclude that issuing an original license for the proposed project, with our 

recommended measures, would not be likely to adversely affect the endangered Indiana bat. 

Therefore, we do not believe that formal consultation is required. 1.1 

USFWS disagrees with FERC assessment regarding mussels stating " .. federally listed mussels. 

Therefore, the Service does not concur with your determination that the project is not likely to 

adversely affect federally listed mussels and we agree that the project should proceed through 

the formal consultation process." 

FERC Issues letter to USFWS stating its Environmental Assessment addressed USFWS comments. 

FERC asks for concurrence by April19, 2017 in regard to the Northern long Eared Bat 

USFWS issues a Draft Biological Opinion to the FERC and the USACE and concluded: 

"After reviewing the current status of the species, the environmental baseline for the action 

area, the effects of the proposed actions, and the cumulative effects, it is our biological opinion 

that the R.C. Byrd Hydroelectric Project and the Corps' Navigation Channel Dredging 

Maintenance Project, as proposed, are not likely to jeopardize the continued existence of the 

fanshell, pink mucket pearly mussel, sheepnose, and snuffbox. No critical habitat has been 

designated for these species; therefore, none will be affected." 

AMP issues a response to the USFWS Biological Opinion and agrees with most but objects to 

perpetual water monitoring including dissolved oxygen, temperature and total dissolved gases. 

FERC comments on USFWS Draft Biological Opinion 

USFWS issues Final Biological Opinion 

FERC issues Final Programmatic Agreement for Cultural Resources Management 

FERC issues License 
76 

LIST OF PERMJTS/APPROVAL/UCENSES/EVALCATIONS--FOSSIL 

OPSB Certillcate 

Section 404/l 0 

Section40! 

Permit to Install-water 

Ohio Power Siting 

Army Corp> 

OEPA 

OEPA 

Permit to Install-sanitary OEPA 

Water withdrawal rcgistrationODNR 

NPDES EPA/OEPA 

Stonnwater Permit OEPA 

Permit to Install-Air EPAIOEPA 

Title Y Operating-Air EPA/OEPA 

Solid Waste Permit to Jnstail OEPA 

Hazardous Waste Permit 

Historic Preservation 

Endangered Species Eva!. 

License 

ODOT Permit 

EPA/OEPA 

SHPO 

ODNR/USF&W 

FAA 

ODOT 

Certificates for 50MW+ projects and T-Jine 

Impacts to jurisdictional water 

Impacts to wetlandshtrcams 

Build sourcc(s) of water discharge 

On-site water discharge 

vVithdrawal water 

Discharge of industrial water 

Manage site/construction stormwatcr 

Installation of air emission source[sJ 

Operation of air emission somce(s) 

Management of solid waste (ash etc) 

M:magcmcm of Haz. Waste 

Evaluation of eul\ural/hi,toric resources 

Evaluation of 

LIST Ol' PERMITS/APPROVAL/LfCI•:NSES/EV AUJATIONS··HYDRO 

OPSB Cettificate 

Preliminary Permit 

License 

NEPA 

Section 404110 

Section 408 

Section 40 l 

Ohio Power Siting 

FERC 

FERC 

EPA 

Army Corp,; 

Army Corps 

OEPi\ 

Water withdrawal registrationODNR 

NPDES EPA/OEPA 

Stonnwater Permit OEPA 

Historic Preserv. Act SHPO 

Endangered Species Eval. ODNRiUSF&W 

License FAA 

ODOT Permit ODOT 

Flood Impact Approval FEMA 

Certificates for 50MW+ projects and T-line 

Permit to prepare and submit a License App. 

C(1rnprehensive energy project license 

Compliance with statute on federal projects 

Impacts to jurisdictional water 

Permission to impair federal structure 

lmpacb to wetlandsNreams 

Withdrawal of \Vater 

Discharge of industrial water 

Manage site/construction stormwmer 

Evaluation of cultural/historic resources 

Evaluation of endangered/threatened species 

Transmission Tower approval for aviation 

Roadway considerations/crossings 

To insures no impacts to flood waters 

OTHER REQUIRED/POTENTIAL CONSULTING AGENCIES 

U.S Dept. of Agriculture-Forestry 

National Park Service 

U.S. Bureau of Land Management 

Federal Emergency Management Agency 

U.S. Geological Services 

U.S. Department or Commerce 

OTHER REQUIREMENT 

Regional Transmission Organization Interconnection Process (more than 20 MW)- PJM or 

MJSO in our region 
77 

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) 
78 

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 (USACE) 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 USACE 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 

USACE. 

• 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. 

2 
79 

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 (USAGE) 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 USAGE 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 staff's 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 
80 

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 of Trustees 

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 

4 
81 

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); 

• Dispatchabi!ity (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). 

5 
82 

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 USAGE 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 1"1 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 
83 

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 
84 

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, USACE serves as a mandatory conditioning authority 

under Section 4(e) of the Federal Power Act. The USACE uses this authority to influence 

the direction and extent of FERC license articles. Through a Memorandum of 

Understanding (MOU) with the USACE, FERC includes a series of license articles that 

were created to help protect the USACE navigation interests established in the Rivers 

and Harbors Act of 1899. The articles also include a requirement that the licensee provide 

power for the USACE dam for the term of the license. 

After the FERC license process has been completed, the USACE 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 USACE. The USACE 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 USACE 

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 USACE 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 USACE 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 USACE 408 approval process for run-of-the-river 

hydropower is a new obligation. AMP was the first hydropower developer required by the 

USACE 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. 

USACE 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 USACE 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 
85 

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 USAGE'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 USAGE'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 
86 

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 Apri12007, a Preliminary Permit Application (PPA) was filed with FERC by Wadsworth, 

effectively beginning the process. Meetings were held with the USAGE to review the 

project and plans in November 2008 at the project site with several USAGE 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 USAGE, a proposed project 

concept was developed. In June 2009, AMP filed with FERC (and served copies to the 

USAGE'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 

USAGE 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), USAGE, 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 

USAGE, 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 

10 
87 

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, FERC 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, FERC 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. FERC 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 USACE expressed additional concerns over mussels and the 

impact of the project on dredging that the USACE does downstream of the dam. The 

USACE 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 FERC 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 

USACE. A subsequent revised version reduced the length to 25 pages. FERC issued a 

final EA for the project on January 23, 2015. 

The USACE has repeatedly taken the position that any comments not resolved by FERC 

or AMP to the USACE'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 

11 
88 

determination and explained that USAGE would address the same issues through the 

404 and 408 permit process to their satisfaction. In late August, FERG issued the final 

programmatic agreement for cultural resources management 

FERG 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 USAGE 

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 RG. 

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 

12 
89 

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 USACE, 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 
90 

Unfortunately, there is no silver bullet to streamlining and accelerating the license and 

permit approval labyrinth. Although the shared goal of DOE, USAGE, 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 
91 

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 
92 

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 RC. 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 
93 

Senate Committee on Homeland Security and Governmental Affairs: 

ROUNDTABLE- FAST -41 and the Federal Permitting Improvement Steering Council: 

Progress and Next Steps 

June 27, 2018 

Chairman Johnson, Senator Portman, Ranking Member McCaskill and Members of the 

Committee: 

Mr. Chairman and Senators, thank you for the oppotiunity to provide a statement to this 

Committee on our experience as it examines the federal authorization and environmental review 

processes for major infrastructure projects. Before going any fatiher, I want to thank, on behalf 

of our agency and the people of Louisiana, Senators Portman and McCaskill for their 

sponsorship of the Fixing America's Surface Transpotiation Act of 2015 ("FAST -41 ")and for S. 

3017, their pending legislation to build on the foundation laid by that important legislation. 

The efforts of Congress, through the enactment of F AST-41, and President Trump, 

through Executive Order 13807, demonstrate the will of the federal government to improve and 

streamline existing permitting and environmental review processes. Modemizing and 

effectuating meaningful changes to these processes is critical to enabling the Louisiana Coastal 

Protection and Restoration Authority ("CPRA") to successfully carry out its charge to implement 

an integrated coastal protection program to reduce the catastrophic rate of coastal land loss in 

Louisiana, and we fully and aggressively support this effort. It is essential to our mission. 

Louisiana is facing a coastal crisis, and time is of the essence. 

The State of Louisiana loses an unprecedented amount of land to coastal erosion every 

year. Since the 1930s, Louisiana has lost approximately 2,000 square miles of land to coastal 
94 

erosion, and an additional 4,000 square miles of coastal Louisiana could be lost in the next 50 

years if significant action is not taken. The restoration of Louisiana's coast is vital not only to the 

millions of people who live along our coast but also to our nation. Our coast serves as a gateway 

to other economic engines with vast national impact, including energy resources, the commercial 

seafood industry, and maritime transportation and trade. The impacted area is home to half the 

country's oil refineries and pipelines serving 90 percent of the nation's offshore energy 

production. Louisiana ships the most cargo in the nation along the Mississippi River and its 

waterways. Louisiana's wetlands today represent about 40 percent of the wetlands in the 

continental United States, but account for about 80 percent of the losses of the nation's original 

wetland habitats. These wetlands protect these valuable assets and infrastructure from storm 

surge and flooding. These assets include fisheries, oil and gas pipelines, petroleum reserves, and 

the Hemy Hub -a national distribution point for natural gas. Louisiana's commercial fishing 

landings are the largest in the continental United States, second in the nation after Alaska. 

* 

OFTHENATION'S 

GRAIN IS SHIPPED 0 VIA THE lOWER 
95 

Louisiana's Response: the Coastal Master Plan 

Every five years, CPRA updates the State's Coastal Master Plan, which includes projects 

to protect and restore our coast. Our first Master Plan was developed in 2007. The 2017 Coastal 

Master Plan was unanimously approved by the Louisiana legislature. It represents a 50 year, $50 

billion plan to restore and protect Louisiana's coast. Implementation of the 124 projects in the 

Plan would add or maintain over 800 square miles of coastal land and wetlands, compared to a 

future where no projects are built. These projects are expected to reduce storm and flood damage 

by $8.3 billion armually, which equates to more than $150 billion in damage reduction over the 

next 50 years. 

Louisiana has secured approximately $11 billion in funding for our Coastal Master Plan 

projects over the next 15 years, with a reasonable expectation of receiving up to $19 billion over 

the next 50 years. With such significant funding in place, Louisiana is ready to demonstrate to 

the nation what can be accomplished with improvement to the environmental review and 

permitting processes. 

The State of Louisiana itself continuously strives to expedite implementation of its 

priority integrated coastal protection projects. Over the last few years, these efforts have included 

legislative updates to state law, gubernatorial proclamations and executive orders, and increased 

communication and coordination among state regulatory agencies in an effort to expedite the 

permitting and implementation of these projects. 

For example, in 2016, the Louisiana legislature passed a bill authorizing CPRA to 

develop a natural resource damages ("NRD") restoration banking program. The NRD banking 

program provides a mechanism to bring funding from the private sector, through the utilization 

of public-private partnerships, to implement restoration projects. Also, in 2017, the legislature 

3IPage 
96 

passed a bill authorizing CPRA to utilize outcome-based performance contracting. This is an 

alternative, full delivery model that provides the state with an opportunity to utilize up-front 

private investment to get marsh creation and ecosystem restoration projects on the ground faster. 

Louisiana has also taken unprecedented steps to elevate our coastal crisis and the 

associated environmental review and federal permitting processes to national focus. On April 18, 

2017, Governor John Bel Edwards signed an emergency proclamation declaring the Louisiana 

coast in a state of crisis and emergency. The Proclamation recognizes the importance of coastal 

Louisiana, to the state and the nation, and represents the type of bold decision that needs to be 

made to respond to this crisis. The Proclamation directs Louisiana agencies to take all necessary 

actions authorized by law to expedite the implementation of ecosystem restoration projects, 

including expediting the applicable state permitting and enviromnental reviews. 

Federal Infrastructure Permitting Process 

FAST-41 and EO 13807 have been welcome additions to the legal landscape. CPRA 

applauds the federal agencies' recent efforts, under the leadership of the executive staff at 

Federal Permitting Improvement Steering Council ("FPISC" or "the Council") and the Council 

on Enviromnental Quality ("CEQ"), to implement the changes needed to improve the 

enviromnental review and permitting processes for major infrastructure projects. CPRA also 

encourages the continued evaluation of these processes and improvements to existing law, 

including the amendments outlined inS. 3017. 

a. Mid-Barataria Sediment Diversion 

The Mid-Barataria Sediment Diversion ("MBSD") is one of five cornerstone projects in 

the Louisiana Master Plan. The proposed MBSD is one of the largest coastal restoration projects 

in the history of the country and will provide much needed sediment, water, and nutrients to the 

4jPage 
97 

Barataria Basin to build, maintain, and sustain the wetlands to restore valuable ecosystem 

services injured by the Deepwater Horizon ("DWH'') oil spill. In just a short time, the MBSD 

has become a prime example of how the FAST-41and EO 13807 can provide increased 

efficiencies and streamlined processes, leading to significant improvements to the permitting 

timetable for this project. 

In June 2016, CPRA submitted an updated permit application to the New Orleans District 

of the United States Anny Corps of Engineers ("USACE"). Shortly thereafter, CPRA met with 

USACE, as lead federal agency for the proposed project, and the federal coordinating agencies 

and asked for an estimated timeline for the environmental review and decision on the permit. 

CPRA was given a timeline of ten years. Given the state of crisis of Louisiana's coastal land 

loss, which was exacerbated by the DWH oil spill, this timeframe was unacceptable. 

Governor Edwards requested in the fall of 2016 that the Council place the MBSD on its 

permitting "dashboard". In January, 2017, the Council approved Governor Edwards' request. A 

coordinated project plan ("CPP") was developed with an anticipated permit decision date of 

October 2022 five and a half years from the notice of intent to prepare an environmentai 

impact statement and over six years from the submission of the permit application, a significant 

improvement over the initial ten year estimated timeline. In the months following the issuance 

of the original CPP, CPRA engaged in negotiations and meetings with FPISC and CEQ, in 

coordination with USACE and the federal cooperating agencies. In January, 2018, CPRA 

successftllly executed the first Memorandum of Understanding ("MOU") between a state and the 

federal government under the FAST-Act and EO 13807. This MOU was a milestone 

achievement. Since entering into the MOU, the State has been able to participate more fully in 

the environmental review and permitting process, and the federal agencies and the State have 

5[Page 
98 

revisited and revised the permitting timeline. The MOU has provided the framework for a 

productive working relationship between the State and its agencies and the federal agencies for 

permitting the MBSD project. Through this process, USACE developed an updated CPP, and on 

April 2, 2018, announced that the new CPP advanced the anticipated permit decision date from 

October 2022 to November 2020 - a savings of 22 months. More time savings may be possible 

as we proceed in the coming months. 

The advancement of the permit decision date in no way eliminates vital steps in the 

permitting and environmental review process, does not reduce the environmental standards 

applicable to the project under current law, and will not jeopardize the integrity of the permitting 

process. Instead, FAST -41 and EO 13807 have had the positive effect of streamlining permitting 

and environmental review process through increased coordination, cooperation, and transparency 

between the State of Louisiana and the FAST-41 lead and cooperating agencies. Through the 

MOU, CPRA and the federal agencies committed to dedicating necessary personnel and 

resources to the environmental review and permitting processes, ensuring executive level 

participation to monitor the work on the proposed project, and improving communication within 

and . among agencies. Additionally, as outlined in the MOU, the agencies committed to 

identifying issues early in the process that may result in delay, and resolving concerns through 

the dispute resolution procedures. 

Through the leadership of FPISC and CEQ, the application of FAST-41 to the MBSD 

project permitting timetable has resulted in a more efficient permitting process. Applying lessons 

learned and continuing to improve upon and effectuate meaningful changes to the environmental 

review and permitting process will lay the groundwork for future projects that CPRA plans to 

6jPage 
99 

undertake. Indeed, stronger state and federal collaboration will ensure the continued success of 

Louisiana's coastal program and fully meet the goals of the nation's enviromnental policy. 

b. F AST-41 Improvements 

While CPRA is pleased with the permitting timetable improvements achieved for the 

proposed MBSD project, for a variety of reasons, the new time line for the permitting process for 

MBSD is still too long. This suggests that additional changes are necessary to ensure that the 

underlying spirit and intent ofFAST-41 and EO 13807 become ingrained in the agency psyche 

so that expedience and good governance become the bywords of agency process, supplanting 

delay and bureaucratic red tape as the norm. 

S. 3017 provides an opportunity for Congress to effectuate meaningful change and pursue 

amendments that will allow agencies to continue to engage in comprehensive, legally-sufficient 

environmental reviews without undue delay. CPRA supports and is pleased to see the 

incorporation of a two-year timeline into the legislation. Establishing a clear target has provided 

strong motivation to all involved to meet the deadlines outlined in the CPP for the proposed 

MBSD. Further, requiring the facilitating and lead agency to include specific reasons why the 

permitting process will take longer than two years and to articulate the specific efforts that will 

be made to reduce the time needed to complete the permitting process, not only increases public 

transparency, but also ensures that the agencies are taking a hard look at their internal 

procedures. CPRA would recommend, however, including an upward limit (e.g. three to four 

years) on enviromnental review and permitting for projects that will take longer than two years. 

While an upward limit should never compromise fulsome enviromnental review, CPRA does 

believe that this approach is better than an unbounded process because it will provide agencies 

71Page 
100 

with an accountability mechanism that encourages both good governance and effective 

communication. 

As noted above, the MOU between the State of Louisiana and the FAST-41 lead and 

cooperating agencies includes a provision establishing an appropriate and effective role for 

CPRA in the enviromnental review and authorization process. The MOU recognizes that, 

through the planning process for the Louisiana Coastal Master Plan and its status as the FAST-41 

project sponsor, CPRA is uniquely situated to provide significant, substantive information and 

perspective that can meaningfully aid the Parties in achieving the efficient execution of the 

enviromnental review and authorizations. This increased role for CPRA has proven to be 

noteworthy in the efforts to find efficiencies in the development of the EIS for the proposed 

MBSD. As such, CPRA suggests broadening the definition of "cooperating agency" to allow a 

state, when it is a project sponsor, to be considered a cooperating agency for purposes of FAST41. 

As outlined above, the involvement of a state as a cooperating agency has multiple 

advantages, and the environmental review and authorization process could be even further 

improved by encouraging increased reliance on existing studies and enviromnental analysis that 

has been undertaken by, or on behalf of, a state. For example, the State of Louisiana has spent 

more than a decade working with a myriad of scientific experts developing, testing, and refining 

its Coastal Master Plan. The Coastal Master Plan is a long-term program of construction, 

operations and maintenance, and adaptive management that is guided by a robust and continuous 

planning process. It is based on the best available science and engineering to sequence and 

prioritize projects for implementation. The development of the Coastal Master Plan prioritizes 

active involvement from our coastal stakeholders and communities. The increased reliance on 

8IPage 
101 

such efforts and analyses by federal authorizing agencies is a means by which to further expedite 

environmental review and permitting in the future. 

Active engagement by the Council has been extremely valuable to CPRA and the 

numerous federal agencies during the development of the EIS for the proposed MBSD. Council 

staff regularly participates in meetings related to the proposed project and has assisted with the 

identification and resolution of issues and concerns identified early in the process. The Council 

and CEQ have been accommodating, engaging with CPRA in multiple face-to-face and 

telephonic meetings. As more projects are added to the federal dashboard, it will be important for 

the Council to have a dedicated budget and staff to ensure it can efficiently meet its statutory 

charges. 

Conclusion 

FAST-41 and EO 13807 have resulted in a momentous shift to the permitting timetable 

for CPRA's cornerstone large-scale integrated coastal protection infrastructure project. By 

implementing the principles of these legislative and executive mandates, CPRA has seen 

firsthand the efficiencies that can be found in the current environmental review and permitting 

processes. However, we have also observed obstacles to fully achieving meaningful change to 

these processes. We strongly encourage Congress to continue to pursue opportunities to 

streamline the environmental review and authorization processes. Coastal Louisiana is in an 

existential crisis and needless delay is not an option. We continue to lose coastal land at an 

average rate of a football field every 100 minutes. Time is of the essence for us. We must work 

to identify all available efficiencies so that project implementation can move forward 

expeditiously. If the laws and processes that are intended to protect the environment instead 

function as tools to delay or proscribe implementation of the State's coastal restoration and 

9IPage 
102 

protection projects, then Louisiana coastal restoration becomes a fool's errand and the unique, 

dynamic, and critically important resources we are so desperately trying to protect and restore 

will soon vanish. 

Respectfully submitted, 

to 1 r <l 
103 

Æ 

Post-Roundtable Questions for the Record 

Submitted to Angela Cola maria 

Acting Executive Director 

Federal Permitting Improvement Steering Council 

From Senator Rob Portman 

"Roundtable on Fast~41 and the Federal Permitting Improvement Steering Council: Progress to Date and Next Steps" 

June 27, 2018 

l. The Federal Energy Regulatory Commission has resisted in participating in the development of the initial timeline by arguing 

it is an independent agency not subject to the same requirements as other agencies. What is the status of FERC and the 

Nuclear Regulatory Commission's participation with the Commission and their posting of information on the Permitting 

Dashboard? 

Response: FERC has posted and updated all required information since the inception of the Dashboard, with the exception of 

target completion dates for FERC Commission authoriz.ations. FERC has explained that its status as a multi-member, 

independent agency impacts its approach to complying with this mandate. However, because these dates can impact the timing 

of other agencies' actions, FERC staffha< indicated to FPISC staff that the agency is working to post the dates in order to 

maximize the development of a coordinated, concurred upon timetable. We are in discussions with FERC to discuss options 

for compliance. The NRC has posted and updated all required information for covered projects that are on the Dashboard, 

including target completion dates (i.e., projection of NRC Commission decision dates). 

What level of service could the Permitting Council provide with a $10 million appropriation? With $15 million? How does 

that compare with the proposed $6 million appropriation for FY2018? 

The FY 2019 Budget requests $6.07 million for the Federal Permitting Improvement Steering Council OtTice of the Executive 

Director (FPISC-OED). Given the current inventory ofFAST-41 covered projects, this appropriation, in conjunction with 

anticipated fees, will allow the Pennitting Council to execute its statutory requirements and to carry out responsibilities under 

Presidential Executive Order 13807 on Establishing Discipline and Accountability in the Environmental Review and 

Permitting Process Infrastructure. We will consider future resource needs through the annual Budget process.