S. Rept. 114-113 - FEDERAL PERMITTING IMPROVEMENT ACT OF 2015114th Congress (2015-2016)
Committee Report
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| Accompanies: | S.280 |
| Committees: | Senate Homeland Security and Governmental Affairs Committee |
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Calendar No. 193
114th Congress } { Report
SENATE
1st Session } { 114-113
_______________________________________________________________________
FEDERAL PERMITTING IMPROVEMENT ACT OF 2015
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 280
TO IMPROVE THE EFFICIENCY, MANAGEMENT, AND INTERAGENCY
COORDINATION OF THE FEDERAL PERMITTING PROCESS
THROUGH REFORMS OVERSEEN BY THE DIRECTOR OF THE
OFFICE OF MANAGEMENT AND BUDGET, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
August 4, 2015.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
49-010 WASHINGTON : 2015
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Christopher R. Hixon, Chief Counsel
Sayta P. Thallam, Chief Economist
Gabrielle A. Batkin, Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Mary Beth Schultz, Minority Chief Counsel
Katherine C. Sybenga, Minority Senior Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 193
114th Congress } { Report
SENATE
1st Session } { 114-113
======================================================================
FEDERAL PERMITTING IMPROVEMENT ACT OF 2015
_______
August 4, 2015.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 280]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 280) to improve the
efficiency, management, and interagency coordination of the
Federal permitting process through reforms overseen by the
Director of the Office of Management and Budget, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and an amendment to the title and recommends
that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis......................................4
V. Evaluation of Regulatory Impact..................................8
VI. Congressional Budget Office Cost Estimate........................8
VII. Changes in Existing Law Made by the Bill, as Reported...........11
I. PURPOSE AND SUMMARY
S. 280, the Federal Permitting Improvement Act, seeks to
make more efficient the process for federal approval for major
infrastructure projects. It would create a council composed of
the relevant permitting agencies to establish best practices
and model timelines for review, designate individuals within
agencies with primary responsibility for coordinating reviews
and agency decisions, and shorten the time in which challenges
can be made to final decisions.
II. BACKGROUND AND THE NEED FOR LEGISLATION
In the World Bank's most recent Doing Business report, the
United States ranked 41st in the category of ``Dealing with
Construction Permits'' (11th among Organization for Economic
Co-operation and Development high income countries).\1\
Businesses seeking to undertake major capital projects often
must run the gauntlet of numerous separate agency reviews and
approvals.\2\ That process is plagued by a lack of
coordination, few deadlines, insufficient transparency, and
litigation exposure for up to six years after securing required
approvals.\3\ State and local governments face the same
obstacles when they seek federal permits for infrastructure
projects.\4\ The resulting uncertainty surrounding major
projects makes new construction and investments less attractive
and hinders job creation.\5\ Several recent reports have
highlighted the need for modernization of the permitting
process, including reports from the President's Jobs
Council,\6\ the Business Roundtable,\7\ and the U.S. Chamber of
Commerce.\8\
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\1\World Bank Group, Doing Business 2015: Going Beyond Efficiency
(12th ed., 2014), available at http://www.doingbusiness.org/reports/
global-reports/doing-business-2015. This indicator is a composite of
the number of procedures required, the number of days, and cost.
\2\For instance, the number of permits and reviews for a pipeline
project can be up to 15 across eight agencies. The number of permits
and reviews for transmission line projects is 17. See Permitting
Dashboard, Federal Permitting and Review Inventory, http://www.permits
.performance.gov/permit-inventory (last visited June 10, 2015).
\3\Challenges under the National Environmental Policy Act are
generally done under the Administrative Procedure Act, which currently
applies the general statute of limitation on claims of six years. See
28 U.S.C. Sec. 2401.
\4\``As major infrastructure projects are proposed, state, local,
and tribal entities work to consider and minimize potential impacts on
safety and security, and environmental and community resources such as
air, water, land, and historical and cultural resources . . . for
particularly large and complex infrastructure projects, multiple
permits and approvals can lead inefficiencies [sic] and delay.'' The
White House, FACT SHEET--Building a 21st Century Infrastructure:
Modernizing Infrastructure Permitting, Office of the Press Secretary
(May 14, 2014), https://www.whitehouse.gov/the-press-office/2014/05/14/
fact-sheet-building-21st-century-infrastructure-modernizing-
infrastructu.
\5\The longer a project takes to arrive at its income-producing
phase, the more its eventual flow of income must be discounted (to
account for the time value of money). Where that length of time to
completion is unknown or indeterminate, this manifests in the capital
budgeting formula as an increase in risk, and requires a higher
expected return to compensate for that risk (risk premium). In other
words, higher risk results in an effectively more expensive project.
\6\President's Council on Jobs and Competitiveness, Road Map to
Renewal, 2011 Year-End Report, 28-30, 42-44 (Jan. 9, 2012), http://
files.jobs-council.com/files/2012/01/JobsCouncil_
2011YearEndReportWeb.pdf.
\7\Business Roundtable, Permitting Jobs and Business Investment:
Streamlining the Federal Permitting Process (Apr. 24, 2012), available
at http://businessroundtable.org/resources/permitting-jobs-and-
business-investment.
\8\Steve Pociask and Joseph P. Fuhr, Jr., Project No Project,
Progress Denied: A Study on the Potential Economic Impact of Permitting
Challenges Facing Proposed Energy Projects, (Mar. 10, 2011), available
at http://www.projectnoproject.com/wp-content/uploads/2011/03/PNP_
EconomicStudy.pdf. ``In the 40 years since the passage of the National
Environmental Policy Act and the development of the current federal
regulatory process, the practice of completing environmental reviews
for major infrastructure projects has significantly lengthened average
project delivery times. For example, in 2011, the average time it took
to complete an environmental impact statement on a highway project was
over eight years, compared with two years just after the law was
passed.'' See Petra Todorovich and Daniel Schned, Getting
Infrastructure Going: Expediting the Environmental Review Process, 3
(2012), available at http://www.rpa.org/library/pdf/RPA-Getting-
Infrastructure-Going.pdf.
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Two bipartisan transportation bills (in 2006 and 2012)
contained permit streamlining reforms in the same spirit as S.
280, but with application to a narrower category of
projects.\9\ This bill also incorporates and addresses
recommendations from the President's Council on Jobs and
Competitiveness and other recent studies on this issue.\10\ The
bill would improve the permitting process for major capital
projects in three ways: better coordination and deadline-
setting for permitting decisions; enhanced transparency; and
reduced uncertainty owing to reduced litigation risk. The bill
is limited to economically significant capital projects,
defined based on the size of the expected total investment
(more than $200 million). The bill covers major capital
projects across sectors, including renewable or conventional
energy production, electricity transmission, aviation, ports
and waterways, broadband, pipelines, and manufacturing.\11\
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\9\See, e.g., Pub. L. No 112-141, Subtitle C.
\10\ See, e.g., Jobs Council Recommendations, Enhance American
Competitiveness Through Smart Regulatory Reform, http://files.jobs-
council.com/files/2012/01/JC_FactSheet_
Regulation1.pdf (last visited July 30, 2015); Jobs Council
Recommendations, Simplify Regulatory Review and Streamline Project
Approvals, http://files.jobs-council.com/files/2011/10/
JobsCouncil_Regulatory.pdf (last visited July 30, 2015); and
Presidential Memorandum--Speeding Infrastructure Development through
More Efficient and Effective Permitting and Environmental Review, the
White House Office of the Press Secretary (Aug. 31, 2011), https://
www.whitehouse.gov/the-press-office/2011/08/31/presidential-memorandum-
speeding-infrastructure-development-through-more.
\11\Surface transportation projects under 23 U.S.C. Sec. 139 and
water resource projects under 33 U.S.C. Sec. 2348 are specifically
exempt from the provisions of this bill.
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The bill also builds on and makes permanent the new permit
streamlining portal launched by the Obama Administration in
2012 through Executive Order 13604.\12\ The bill does not alter
substantive standards or safeguards, but instead seeks to
create a smarter, more transparent, better-managed process for
government review and approval of major capital projects.
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\12\See Federal Infrastructure Projects,
www.permits.performance.gov (last visited June 7, 2015).
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III. LEGISLATIVE HISTORY
Senator Portman introduced S. 280 on January 28, 2015. The
bill was referred to the Committee on Homeland Security and
Governmental Affairs. The Committee considered S. 280 at a
business meeting on May 6, 2015.
During the business meeting, Senator Portman offered a
substitute amendment, as modified, reflecting numerous changes
to the operational structure of the provisions in the
legislation, including changes to the role played by the Office
of Management and Budget (OMB) and a change to the statute of
limitations for challenges to agency permitting decisions from
150 days to two years. The substitute amendment, as modified,
was adopted by unanimous consent with Senators Johnson, McCain,
Portman, Lankford, Ayotte, Ernst, Sasse, Carper, McCaskill,
Tester, Baldwin, Heitkamp, and Peters present.
Senator Portman offered five other amendments during the
business meeting. The first amendment changed the official
title of the bill. The second amendment clarified that the
Director of OMB must consult with the Chairman of the Council
of Environmental Quality in resolving disputes. The third
amendment clarified that state documents adopted as federal
environmental reviews or incorporated into such reviews must
have been prepared under circumstances that allow for public
participation and consideration of alternatives that
aresubstantially equivalent to the National Environmental Policy Act
(NEPA). The fourth amendment made changes to the maximum time period
for comments in the event that state documents are adopted or
incorporated and need to be supplemented. The fifth amendment clarified
that the statute of limitations runs from the date of publication in
the Federal Register of the final record of decision or approval or
denial of a permit, rather than publication of notice of such decision.
All five amendments were adopted en bloc by voice vote on May 6, 2015,
with Senators Johnson, McCain, Portman, Lankford, Ayotte, Ernst, Sasse,
Carper, McCaskill, Tester, Baldwin, Heitkamp, and Peters present.
The Committee ordered S. 280, as amended, reported
favorably by roll call vote on May 6, 2015, with 12 yeas to 1
nay. Senators voting in the affirmative were Senators Johnson,
McCain, Portman, Lankford, Ernst, Sasse, Carper, McCaskill,
Tester, Baldwin, Heitkamp, and Peters. The Senator voting in
the negative was Senator Ayotte.
IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED
Section 1. Short title
This section provides the bill's short title, the ``Federal
Permitting Improvement Act of 2015.''
Section 2. Definitions
This section provides several definitions, including for
the following terms: ``agency'', ``agency CERPO'',
``authorization'', ``cooperating agency'', ``Council'',
``covered project'', ``Dashboard'', ``environmental
assessment'', ``environmental document'', ``environmental
impact statement'', ``environmental review'', ``Executive
Director'', ``facilitating agency'', ``inventory'', ``lead
agency'', ``NEPA'', ``participating agency'', ``and ``project
sponsor''.
Section 3. Federal Permitting Improvement Council
Subsection (a) establishes the Federal Permiting
Improvement Steering Council.
Subsection (b) stipulates the composition of the Council.
The Executive Director, appointed by the President, shall serve
as Chair. Other Council members will be designated by the heads
of the following agencies, departments, and councils:
Agriculture; Army; Commerce; Interior; Energy; Transportation;
Defense; Environmental Protection Agency; Federal Energy
Regulatory Commission; Nuclear Regulatory Commission; Homeland
Security; Housing and Urban Development; Advisory Council on
Historic Preservation; and other agencies as invited by the
Executive Director. The Chairman of the Council on
Environmental Quality (CEQ) and the Director of OMB shall also
be members of the Council. The above listed heads of agencies
shall also designate individuals within their agency to serve
as agency Chief Environmental Review and Permitting Officers
(CERPOs) and report directly to a deputy secretary (or
equivalent).
Subsection (c) establishes duties. The Executive Director
shall be responsible, in consultation with the Council, for
establishing and updating an inventory of covered projects,
designating a facilitating agency for each project in the
inventory, and publishing this information in the Dashboard
established under subsection (b)(2)(A). Within a year the
Executive Director will develop categorical nonbinding
performance schedules for reviews and authorizations, and these
performance schedules will be revised bi-annually. The
Executive Director may also make recommendations to the
Director of OMB and CEQ on issuing guidance to agencies on best
practices.
In addition to consultation responsibilities related to the
Executive Director's duties as stated above, the Council shall
within one year, and annually thereafter, make recommendations
on best practices for enhancing and improving: stakeholder
engagement; timely decisionmaking; coordination between Federal
and non-federal governmental entities; information collection;
transparency; availability of geographic data to applicants;
training materials for government officials; and other issues
as determined by the Council.
Agency CERPOs act as advisors to their respective agency
councilmembers, provide technical expertise and support within
the agency to improve processes and provide internal and inter-
agency dispute resolution, make recommendations on best
practices, and develop training programs for agency staff. They
will also work with the Executive Director and the project
sponsor to mediate permitting timetable disputes. The Director
of OMB will act as final facilitator of a resolution of the
dispute (though not direct a resolution) if it remains after 30
days.
Subsection (d) requires the Director of OMB to designate a
Federal agency to provide administrative support and staff for
the Executive Director.
Section 4. Permitting Process Improvement
Subsection (a) describes the process of initiating a
project review, designation of facilitating, participating,
cooperating, and leading agencies, contents of a project
notice, publication of project information to the Dashboard,
and dispute resolution.
Subsection (b) provides a detailed description of and
requirements for the Dashboard, with responsibilities and
deadlines for the various entities involved. The Dashboard will
be an on-line database tracking permitting reviews required for
projects.
Subsection (c) describes the requirement for a Coordinated
Project Plan, including a deadline for posting a project entry
on the Dashboard. The Coordinated Project Plan will include,
among other items, a permitting timetable developed by the
facilitating or lead agency in consultation with the project
sponsor, cooperating and participating agencies, and any
applicable state. The Executive Director will initially mediate
any disputes regarding the permitting timetable. If a dispute
remains unresolved after 30 days, the Director of OMB will
resolve the dispute. This subsection also contains provisions
addressing modifications to a permitting timetable,
responsibilities of agencies to conform to the timetable, the
process for handling a covered project that is later abandoned.
Finally, the subsection requires coordination where
possible with state, local, and tribal authorities. Any
coordination plan shall be included in a memorandum of
understanding and submitted to the Executive Director.
Subsection (d) requires where applicable an early
consultation process between the project sponsor and any
cooperating and participating agencies.
Subsection (e) describes the designation and definition of
a cooperating agency.
Section 5. Interstate Compacts
Subsection (a) provides Congressional consent for three or
more contiguous states to enter into an interstate compact
establishing regional infrastructure development agencies to
facilitate authorization and review of covered projects.
Subsection (b) defines the authority of a regional
infrastructure development agency.
Section 6. Coordination of Required Reviews
Subsection (a) directs agencies to carry out obligations
concurrently and in conjunction with environmental reviews and
authorizations being conducted by other agencies.
Subsection (b) outlines the adoption, incorporation by
reference, and use of documents. Project sponsors may request
that the lead agency consider adoption or incorporation by
reference of analysis and documentation prepared under State
laws. In consultation with CEQ, the lead can consider such
analysis or documentation for inclusion in a required
environmental review if it was prepared in such a way to allow
public participation and consideration of alternatives
substantially equivalent to requirements pursuant to the
NEPA.\13\ The lead agency will need to supplement adopted or
incorporated documentation if sufficient changes in
circumstances or the project have have occurred since the
analysis. Any supplemental documents require a public comment
period of up to 45 days (with allowable extensions).
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\13\42 U.S.C. Sec. 4321, et seq.
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Subsection (c) requires the lead agency to engage early in
the environmental review process with cooperating agencies to
determine the range of alternatives to be considered for
analysis. This will include developing the range of
alternatives, determining the methodologies to be used, and
identifying--with the concurrence of cooperating agencies--a
preferred alternative to be developed to a higher level of
detail.
Subsection (d) stipulates the comment period for a draft
environmental impact statement will be between 45 and 60 days,
with allowable extensions. For other comment periods in the
environmental review process the length will be up to 45 days,
with allowable extensions.
Subsection (e) directs agencies to work together to resolve
issues that could delay review or approval. The lead agency is
responsible for sharing information on the environmental,
historicand socioeconomic resources in the proposed project
area as well as alternative locations under consideration with other
agencies and project sponsors.
Subsection (f) applies this section to individual covered
projects or a category of covered projects.
Section 7. Delegated State Permitting Programs
Subsection (a) outlines the process whereby federal
agencies with delegation authority will initiate a process with
public input to determine whether and when best practices, as
established by the Council, are appropriate and applicable.
Within two years, agencies will make model recommendations to
state permitting programs.
Subsection (b) allows lead and cooperating agencies to
share with and receive input from state, local, and tribal
authorities on best practices for project review.
Section 8. Litigation, Judicial Review, and Savings Provision
Subsection (a) establishes the statute of limitations on
judicial challenges to an authorization of a covered project by
an agency to no more than two years after the date of
publication in the Federal Register of the final record of
decision or approval or denial. If the challenge relates to an
environmental review under NEPA, the challenge must be filed by
a party that submitted a comment during review process or
lacked an opportunity to do so, and must relate to an issue
raised during the comment period. New information received
after a comment period may be considered under certain
circumstances and if preparation of a new document is required,
this would constitute a separate two-year period in which to
challenge.
Subsection (b) describes factors for consideration by
courts in cases seeking preliminary injunctive relief and
states that the court shall consider public health, safety,
environmental, job and economic impacts of injunction and shall
not presume these harms are reparable.
Subsection (c) clarifies that except in subsection (a),
nothing in this bill affects reviewability of final agency
actions.
Subsection (d) states that nothing in this bill supercedes,
amends, or modifies any federal statute or affects the
responsibility of any federal officer to comply with or enforce
any statute, or creates a presumption that a covered project
will be approved or favorably reviewed by an agency.
Subsection (e) clarifies that this section will not
preempt, limit, or interfere with any public comment practice
or any existing power or authority of agencies (federal, state,
local, tribal) or tribal sponsor.
Section 9. Report to Congress
Subsection (a) requires an annual report to Congress from
the Executive Director describing permitting improvements
resulting from this bill. The requirement lasts for ten years.
Subsection (b) requires the report to assess the
performance of each participating agency.
Subsection (c) allows Council members to include comments
on agency performance.
Section 10. Funding for Governance, Oversight, and Processing of
Environmental Reviews and Permits
Subsection (a) allows relevant agencies, via a notice-and-
comment process, to issue regulations establishing a user fee
for permitting.
Subsection (b) defines ``reasonable costs'' as including
costs for implementing requirements under Sections 3 and 4.
Subsection (c) establishes requirements for the fee
structures: it requires input from stakeholders, excludes
parties for which the fee would pose an undue burden, and
should be structured in such a way as to collect up to 20
percent of the estimated annual fiscal year costs.
Subsection (d) establishes the ``Environmental Review
Improvement Fund'' in which the fees will be deposited and
makes the fund available to the Executive Director for
administration of this bill, or with approval of the Director
of OMB for transfer to other agencies.
Subsection (e) states the use of funds resulting from the
fee establishment regulations will not influence decision-
making with respect to reviews.
Subsection (f) allows further transfer of funds among
agencies to aid implementation of this bill.
Section 11. Application
Applies the bill to projects for which a notice is filed
under section 4(a)(1) or that is pending 90 days after
enactment.
V. EVALUATION OF REGULATORY IMPACT
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the bill would impose
intergovernmental mandates as defined in the Unfunded Mandates
Reform Act (UMRA) but would impose no costs on state, local, or
tribal governments.
The Committee notes that while the Congressional Budget
Office states that S. 280 ``would impose private-sector
mandates . . . on sponsors of large construction projects that
require authorization or environmental review by a federal
agency,'' the bill would not require the project sponsor to
notify federal government agencies beyond current requirements.
Additionally, project sponsors would only be subject to newly
authorized ``fees to cover some of the costs of administering
federal permits and project reviews'' on a voluntary basis for
sponsors seeking consideration under the expedited review
process described in the bill.
VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
July 28, 2015.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 280, the Federal
Permitting Improvement Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
S. 280--Federal Permitting Improvement Act of 2015
Summary: S. 280 would establish the Federal Permitting
Improvement Council to monitor and coordinate the schedules and
activities of federal agencies involved in the review,
approval, permitting, or planning of certain federal or
nonfederal infrastructure construction projects.
Assuming appropriation of the necessary amounts, CBO
estimates that implementing S. 280 would cost $125 million over
the 2016-2020 period, primarily for the staffing and activities
of the new council. Because the bill could affect direct
spending, pay-as-you-go procedures apply. However, CBO
estimates that any changes in direct spending would be
insignificant. Enacting the bill would not affect revenues.
S. 280 would impose intergovernmental and private-sector
mandates, as defined in the Unfunded Mandates Reform Act
(UMRA), on sponsors of large construction projects that require
authorization or environmental review by a federal agency. The
bill would require those sponsors to notify the council and the
facilitating federal agency when initiating a proposed project.
The bill also would authorize federal agencies to charge
project sponsors fees to cover some of the costs of
administering federal permits and project reviews. To the
extent that federal agencies would collect those fees, the bill
would impose a mandate on public and private project sponsors.
Based on information from the Office of Management and Budget
(OMB) and potential project sponsors, CBO estimates that the
cost to comply with the mandates would fall below the annual
thresholds for intergovernmental and private-sector mandates
established in UMRA ($77 million and $154 million in 2015,
respectively, adjusted annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 280 is shown in the following table. The
costs of this legislation would fall primarily within budget
function 800 (general government).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
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2016 2017 2018 2019 2020 2016-2020
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 20 25 30 30 30 135
Estimated Outlays....................................... 15 20 30 30 30 125
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Basis of estimate: For this estimate, CBO assumes that S.
280 will be enacted late in fiscal year 2015 and that spending
will follow historical patterns for similar activities.
Changes in spending subject to appropriation
S. 280 would establish a council to coordinate the issuance
of federal environmental reviews, licenses, permits, and other
administrative decisions needed to implement certain
infrastructure projects. The council would expand on Executive
Order 13604, Improving Performance of Federal Permitting and
Review of Infrastructure Projects (issued in 2012), with an aim
to streamline the federal approval process for certain
construction projects involving expenditures of more than $200
million.
The Federal Permitting Improvement Council would consist of
representatives from 13 participating departments and agencies.
The council would have an Executive Director appointed by the
President, who would serve as chair of the council. The primary
responsibilities of the council would be to oversee and
coordinate the completion of federal reviews and the
administrative decision-making process required for certain
infrastructure projects to proceed. The council would maintain
an online database to track the progress of the projects,
designate a lead federal agency for each project, set review
schedules for agencies to perform their work, and issue
recommendations on best practices for such work.
Information from OMB indicates that the council would
coordinate the federal review of 200 to 300 projects each year.
That level of effort would be considerably larger than the 28
active projects and 33 completed projects listed on the current
Permitting Dashboard ofFederal Infrastructure Projects (http://
www.permits
.performance.gov/), which was established through a Presidential
Memorandum to coordinate the federal permitting process. If the council
coordinated the work of fewer projects each year, its annual costs
would be lower.
Under the bill the council would become involved with
construction projects involving expenditures greater than $200
million, including energy production and transmission; surface,
air, and water transportation; or other types as determined by
the council. The council would be authorized to work with
projects of a size and complexity that would be likely to
benefit from its enhanced oversight and coordination. Under the
bill, projects requiring an environmental review by the
Secretary of Transportation would be exempt from the council's
work, as would water resource projects managed by the U.S.
Corps of Engineers.
Based on information about the scope of the council's
involvement, CBO estimates that when fully implemented the
council would spend about $30 million annually. The council's
employees would work from a headquarters office and satellite
offices across the country. The council would have about 70
employees. Most of the council's employees would be assigned to
work in those agencies with the largest administrative
workloads related to the review of infrastructure projects,
others would probably be assigned to travel to the sites of
such infrastructure projects, and some employees would help the
council to identify best administrative review practices and
track agencies' schedules and progress.
Changes in direct spending
Section 10 would authorize agencies working with the
council to collect fees from sponsors of infrastructure
projects to offset up to 20 percent of the reasonable costs
involved in conducting environmental reviews and completing
other administrative decisions related to those projects. Any
fees collected would be deposited into the proposed
Environmental Review and Permitting Improvement Fund and would
be available for use by the council and the relevant agencies
without further appropriation. Collecting and spending such
fees would have no net budgetary effect.
CBO expects that the authority to collect and spend fees
provided in S. 280 would not significantly reduce the cost--
which is subject to appropriation--of implementing the
legislation. Some of the projects coordinated by the council
would probably be federally sponsored projects, and collecting
fees from one federal agency that would be spent by another
would not reduce costs. Further, many federal agencies already
have broad authorities to charge fees from the public when they
are providing specific identifiable services or goods. It is
unclear whether or how S. 280 would augment that authority.
Finally, some federal agencies, notably the Federal Energy
Regulatory Commission and the Nuclear Regulatory Commission,
collect fees from the industries that they regulate to offset
their annual budgets. In those situations, the agencies could
not charge additional fees under S. 280, but any additional
funds appropriated for them to complete work under S. 280 would
be offset by fees.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. CBO estimates that any net change in direct spending
under S. 280 would not be significant over the 2016-2025
period.
Intergovernmental and private-sector impact: S. 280 would
impose intergovernmental and private-sector mandates, as
defined in UMRA, on sponsors of large construction projects
that require authorization or environmental review by a federal
agency. Large projects are those expected to exceed $200
million in total capital investment. The bill would require
project sponsors seeking a federal permit to submit a notice to
the council and to a lead federal agency when initiating a
proposed project. The notice would have to include a statement
of the project's purpose, information about its location,
technical parameters, and costs, and a listing of federal
authorizations or reviews that the sponsor anticipates will be
necessary. The bill also would authorize federal agencies to
charge project sponsors fees to cover some of the costs of
administering federal permits and reviews. To the extent that
federal agencies would collect those fees, the duty to pay
those fees would be a mandate on public and private project
sponsors. Based on information from OMB about the projected
number of covered projects, the cost to review those projects,
and feedback from potential project sponsors about the cost of
providing data, CBO estimates that the aggregate costs to
comply with the mandates would fall below the annual thresholds
for intergovernmental and private-sector mandates established
in UMRA ($77 million and $154 million in 2015, respectively,
adjusted annually for inflation).
Estimate prepared by: Federal costs: Matthew Pickford;
Impact on state, local, and tribal governments: Jon Sperl;
Impact on the private sector: Paige Piper/Bach.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
VII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
Because this legislation would not repeal or amend any
provision of current law, it would make no changes in existing
law within the meaning of clauses (a) and (b) of paragraph 12
of rule XXVI of the Standing Rules of the Senate.
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