The Nickel Report

On Monday, the Trump Administration released an ambitious legislative proposal that aims to stimulate $1.5 trillion in new infrastructure investment over the next 10 years, expedite the federal permitting process, address rural infrastructure needs, and prepare the American workforce for the future. To accomplish those goals, the proposal includes aggressive recommendations to streamline key federal environmental review and permitting processes for infrastructure projects. In addition to traditional forms of infrastructure, such as roads, bridges, and airports, the Legislative Outline for Rebuilding Infrastructure in America addresses drinking and wastewater systems, energy infrastructure, veterans’ hospitals, and Brownfields and Superfund sites.

The White House requests Congress appropriate $200 billion in federal spending, including:

• $100 billion in incentives to increase infrastructure investment by state and local governments and private entities;
• $50 billion in block grants for rural infrastructure projects selected by state governors;
• $20 billion for “transformative” projects—bold, innovative projects that present unique technical challenges or risks that would otherwise deter private sector investment;
• $20 billion to expand existing federal loan programs; and
• $10 billion to create a capital financing fund for assisting large real property purchases.

The proposal also includes ambitious recommendations to expedite federal environmental review and permitting for infrastructure projects, including the following:

• Establish a “one agency, one decision” review structure in which a lead federal agency is designated for the development of a single environmental review document.
• Establish a firm deadline of 21 months for lead agencies to complete their environmental reviews under the National Environmental Policy Act (NEPA) and issue a Finding of No Significant Impact (FONSI) or Record of Decision (ROD), as appropriate; then, 3 months after issuing the NEPA document, agencies must make a decision regarding the necessary permits.
• Clarify that alternatives outside the scope of an agency’s authority or an applicant’s capability are not feasible alternatives.
• Direct the Council on Environmental Quality (CEQ) to revise its NEPA regulations to reduce the time and costs associated with the NEPA process.
• Increase agency flexibility in establishing and using categorical exclusions, authorizing federal agencies to use categorical exclusions established by other agencies.
• Allow use of one NEPA document for both Clean Water Act (CWA) section 404 and Rivers and Harbors Act section 408 actions.
• Authorize agencies to assign NEPA responsibilities to state agencies, similar to the Department of Transportation assignment program.
• Limit injunctive relief under NEPA to exceptional circumstances.
• Revise the statute of limitations under NEPA for challenging infrastructure permits or authorizations to 150 days.
• Establish procedures that expedite environmental or permitting reviews for projects that enhance the environment through mitigation, design, or other means.
• Eliminate redundancy associated with US Environmental Protection Agency (EPA) reviews of Environmental Impact Statements (EISs) under Clean Air Act section 309.
• Establish that the Army Corps of Engineers, not EPA, has the ultimate authority to make jurisdictional determinations for CWA section 404 permits.
• Remove EPA’s veto authority under CWA section 404(c).
• Clarify deadlines for CWA section 401 water quality certifications by addressing time periods for completeness determinations and the time for a state to make a decision.
• Lengthen the term of National Pollutant Discharge Elimination System (NPDES) permits from 5 to 15 years, and provide for automatic renewals of such permits.
• Eliminate the interagency review team under the 2008 Mitigation Rule for the approval of mitigation banks.
• Authorize all lead federal agencies for infrastructure projects to opt into the expedited highway and transit procedures.
• Authorize federal agencies to accept funding from non-federal entities to support environmental and permitting reviews.
• Authorize the Secretary of Interior to approve rights-of-way across National Park Service lands for natural gas and oil pipelines. Currently, the Secretary only has the authority to approve electric, water, and communications facilities and must seek Congressional approval for oil and gas pipelines.

If adopted by Congress in future infrastructure legislation, these proposals would dramatically change the federal permitting process under CWA and NEPA. Infrastructure is historically an issue both parties in Congress support.