82 FR 40463 - Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects
Executive Office of the President
Federal Register Volume 82, Issue 163 (August 24, 2017)
Page Range
40463-40469
FR Document
2017-18134
Federal Register, Volume 82 Issue 163 (Thursday, August 24, 2017)
[Federal Register Volume 82, Number 163 (Thursday, August 24, 2017)]
[Presidential Documents]
[Pages 40463-40469]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-18134]
[[Page 40461]]
Vol. 82
Thursday,
No. 163
August 24, 2017
Part XXX
The President
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Executive Order 13807--Establishing Discipline and Accountability in
the Environmental Review and Permitting Process for Infrastructure
Projects
Proclamation 9630--National Employer Support of the Guard and Reserve
Week, 2017
Presidential Documents
Federal Register / Vol. 82 , No. 163 / Thursday, August 24, 2017 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 40463]]
Executive Order 13807 of August 15, 2017
Establishing Discipline and Accountability in the
Environmental Review and Permitting Process for
Infrastructure Projects
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to ensure that the Federal
environmental review and permitting process for
infrastructure projects is coordinated, predictable,
and transparent, it is hereby ordered as follows:
Section 1. Purpose. America needs increased
infrastructure investment to strengthen our economy,
enhance our competitiveness in world trade, create jobs
and increase wages for our workers, and reduce the
costs of goods and services for our families. The poor
condition of America's infrastructure has been
estimated to cost a typical American household
thousands of dollars each year. Inefficiencies in
current infrastructure project decisions, including
management of environmental reviews and permit
decisions or authorizations, have delayed
infrastructure investments, increased project costs,
and blocked the American people from enjoying improved
infrastructure that would benefit our economy, society,
and environment. More efficient and effective Federal
infrastructure decisions can transform our economy, so
the Federal Government, as a whole, must change the way
it processes environmental reviews and authorization
decisions.
Sec. 2. Policy. It is the policy of the Federal
Government to:
(a) safeguard our communities and maintain a
healthy environment;
(b) ensure that Federal authorities make informed
decisions concerning the environmental impacts of
infrastructure projects;
(c) develop infrastructure in an environmentally
sensitive manner;
(d) provide transparency and accountability to the
public regarding environmental review and authorization
decisions;
(e) be good stewards of public funds, including
those used to develop infrastructure projects, and
avoid duplicative and wasteful processes;
(f) conduct environmental reviews and authorization
processes in a coordinated, consistent, predictable,
and timely manner in order to give public and private
investors the confidence necessary to make funding
decisions for new infrastructure projects;
(g) speak with a coordinated voice when conducting
environmental reviews and making authorization
decisions; and
(h) make timely decisions with the goal of
completing all Federal environmental reviews and
authorization decisions for major infrastructure
projects within 2 years.
Sec. 3. Definitions. The terms of this order shall be
applied consistently with those defined under 42 U.S.C.
4370m and implementing guidance to the maximum extent
possible. The following definitions shall specifically
apply:
(a) ``Authorization'' means any license, permit,
approval, finding, determination, or other
administrative decision issued by a Federal department
or agency (agency) that is required or authorized under
Federal law in
[[Page 40464]]
order to site, construct, reconstruct, or commence
operations of an infrastructure project, including any
authorization under 42 U.S.C. 4370m(3).
(b) ``CAP Goals'' means Federal Government Priority
Goals established by the Government Performance and
Results Act (GPRA) Modernization Act of 2010, Public
Law 111-352, 124 Stat. 3866, and commonly referred to
as Cross-Agency Priority (CAP) Goals.
(c) ``Federal Permitting Improvement Steering
Council'' or ``FPISC'' means the entity established
under 42 U.S.C. 4370m-1.
(d) ``Infrastructure project'' means a project to
develop the public and private physical assets that are
designed to provide or support services to the general
public in the following sectors: surface
transportation, including roadways, bridges, railroads,
and transit; aviation; ports, including navigational
channels; water resources projects; energy production
and generation, including from fossil, renewable,
nuclear, and hydro sources; electricity transmission;
broadband Internet; pipelines; stormwater and sewer
infrastructure; drinking water infrastructure; and
other sectors as may be determined by the FPISC.
(e) ``Major infrastructure project'' means an
infrastructure project for which multiple
authorizations by Federal agencies will be required to
proceed with construction, the lead Federal agency has
determined that it will prepare an environmental impact
statement (EIS) under the National Environmental Policy
Act (NEPA), 42 U.S.C. 4321 et seq., and the project
sponsor has identified the reasonable availability of
funds sufficient to complete the project.
(f) ``Permitting timetable'' means an environmental
review and authorization schedule, or other equivalent
schedule, for a project or group of projects that
identifies milestones--including intermediate and final
completion dates for action by each agency on any
Federal environmental review or authorization required
for a project or group of projects--that is prepared by
the lead Federal agency in consultation with all
cooperating and participating agencies.
Sec. 4. Agency Performance Accountability. Federal
agencies should follow transparent and coordinated
processes for conducting environmental reviews and
making authorization decisions. These processes must
include early and open coordination among Federal,
State, tribal, and local agencies and early engagement
with the public. Holding Federal agencies accountable
for their progress on implementing the policy set forth
in section 2 of this order should, among other things,
produce measurably better environmental outcomes with
respect to infrastructure development.
(a) Performance Priority Goals.
(i) CAP Goal. A CAP Goal is a Federal tool for accelerating progress in
priority areas that require active collaboration among multiple agencies to
overcome organizational barriers and to achieve better performance than one
agency could achieve on its own. Within 180 days of the date of this order,
the Director of the Office of Management and Budget (OMB), in consultation
with the FPISC, shall establish a CAP Goal on Infrastructure Permitting
Modernization so that, where permitted by law:
(A) Federal environmental reviews and authorization processes for
infrastructure projects are consistent, coordinated, and predictable; and
(B) the time for the Federal Government's processing of environmental
reviews and authorization decisions for new major infrastructure projects
should be reduced to not more than an average of approximately 2 years,
measured from the date of the publication of a notice of intent to prepare
an environmental impact statement or other benchmark deemed appropriate by
the Director of OMB.
(ii) Agency Goals. All Federal agencies with environmental review,
authorization, or consultation responsibilities for infrastructure projects
shall modify their Strategic Plans and Annual Performance Plans under the
[[Page 40465]]
GPRA Modernization Act of 2010 to include agency performance goals related
to the completion of environmental reviews and authorizations for
infrastructure projects consistent with the new CAP Goal on Infrastructure
Permitting Modernization. The agencies shall integrate the achievement of
these performance goals into appropriate agency personnel performance
plans, such as those of the agency Chief Environmental Review and
Permitting Officers (CERPOs) or other appropriate officials, consistent
with guidance to be provided by OMB, in consultation with the Office of
Personnel Management. Progress on these goals shall be reviewed and
analyzed by agency leadership, pursuant to the GPRA Modernization Act of
2010.
(b) Accountability. Within 180 days of the
establishment of the CAP Goal on Infrastructure
Permitting Modernization, as described in subsection
(a) of this section, or such longer period of time as
determined by the Director of OMB, OMB, in consultation
with the FPISC, shall issue guidance for establishing a
performance accountability system to facilitate
achievement of the CAP Goal.
(i) Tracking of Major Infrastructure Projects. The performance
accountability system shall track each major infrastructure project. The
performance accountability system shall include, at a minimum, assessments
of the agency's performance with respect to each of the following areas, as
applicable:
(A) whether major infrastructure projects are processed using the ``One
Federal Decision'' mechanism, as described in subsection 5(b) of this
order;
(B) whether major infrastructure projects have a permitting timetable;
(C) whether major infrastructure projects follow an effective process
that automatically elevates instances in which permitting timetable
milestones are missed or extended, or are anticipated to be missed or
extended, to appropriate senior agency officials;
(D) whether agencies are meeting the established milestones in the
permitting timetable;
(E) the time it takes to complete the processing of environmental reviews
and authorizations for each major infrastructure project; and
(F) the costs of the environmental reviews and authorizations for each
major infrastructure project.
(ii) Scoring. The accountability system shall include a scoring mechanism
that shall follow, at a minimum, the following procedures:
(A) agencies will submit information to OMB, consistent with existing
reporting mechanisms to the maximum extent possible, on the assessment
areas described in subsection (b)(i) of this section;
(B) at least once per quarter, OMB will produce a scorecard of agency
performance and overall progress toward achieving CAP Goal targets;
(C) where an agency's inability to meet a permitting timetable milestone
results in a significant delay of the project timeline, after consulting
with the project sponsor and relevant agencies, agencies will submit (based
on OMB guidance) an estimate of the delay's costs to the project; and
(D) the Director of OMB will consider each agency's performance during
budget formulation and determine whether appropriate penalties, including
those authorized at 23 U.S.C. 139(h)(7) and 33 U.S.C. 2348(h)(5), must or
should be imposed, to the extent required or permitted by law, for those
that significantly fail to meet a permitting timetable milestone or in
other situations deemed appropriate by the Director of OMB after
considering the causes of any poor performance.
(iii) Best Practices. Agencies shall implement the techniques and
strategies the FPISC annually identifies as best practices pursuant to 42
U.S.C. 4370m-1(c)(2)(B), as appropriate. The performance accountability
system
[[Page 40466]]
shall track and score agencies on the incorporation and implementation of
appropriate best practices for all infrastructure projects, including the
implementation of such best practices at an agency's field level.
Sec. 5. Process Enhancements. In furtherance of the
policy described in section 2 of this order, Federal
agencies shall follow a more unified environmental
review and authorization process.
(a) Processing of Major Infrastructure Projects. In
processing environmental reviews and authorizations for
major infrastructure projects, Federal agencies shall:
(i) use ``One Federal Decision'' described in subsection (b) of this
section;
(ii) develop and follow a permitting timetable, which shall be reviewed and
updated at least quarterly by the lead Federal agency in consultation with
Federal cooperating and participating agencies; and
(iii) follow an effective process that automatically elevates instances
where a permitting timetable milestone is missed or extended, or is
anticipated to be missed or extended, to appropriate senior agency
officials of the lead Federal agency and the cooperating and participating
Federal agency or agencies to which the milestone applies.
(b) One Federal Decision.
(i) Each major infrastructure project shall have a lead Federal agency,
which shall be responsible for navigating the project through the Federal
environmental review and authorization process, including the
identification of a primary Federal point of contact at each Federal
agency. All Federal cooperating and participating agencies shall identify
points of contact for each project, cooperate with the lead Federal agency
point of contact, and respond to all reasonable requests for information
from the lead Federal agency in a timely manner.
(ii) With respect to the applicability of NEPA to a major infrastructure
project, the Federal lead, cooperating, and participating agencies for each
major infrastructure project shall all record any individual agency
decision in one Record of Decision (ROD), which shall be coordinated by the
lead Federal agency unless the project sponsor requests that agencies issue
separate NEPA documents, the NEPA obligations of a cooperating or
participating agency have already been satisfied, or the lead Federal
agency determines that a single ROD would not best promote completion of
the project's environmental review and authorization process. The Federal
lead, cooperating, and participating agencies shall all agree to a
permitting timetable that includes the completion dates for the ROD and the
federally required authorizations for the project.
(iii) All Federal authorization decisions for the construction of a major
infrastructure project shall be completed within 90 days of the issuance of
a ROD by the lead Federal agency, provided that the final EIS includes an
adequate level of detail to inform agency decisions pursuant to their
specific statutory authority and requirements. The lead Federal agency may
extend the 90-day deadline if the lead Federal agency determines that
Federal law prohibits the agency from issuing its approval or permit within
the 90-day period, the project sponsor requests that the permit or approval
follow a different timeline, or the lead Federal agency determines that an
extension would better promote completion of the project's environmental
review and authorization process.
(iv) The Council on Environmental Quality (CEQ) and OMB shall develop the
framework for implementing One Federal Decision, in consultation with the
FPISC.
(A) The framework should be consistent with the model processes
established under 42 U.S.C. 4370m-2, 23 U.S.C. 139, 33 U.S.C. 2348, the
2015 ``Red Book'' (officially entitled ``Synchronizing Environmental
Reviews for Transportation and Other Infrastructure Projects''), and CEQ
guidance on efficient and timely environmental reviews under NEPA.
[[Page 40467]]
(B) The framework shall also include guidance on the development of
permitting timetables by the lead Federal agencies, in collaboration with
Federal cooperating and participating agencies. Permitting timetables shall
identify estimated intermediate and final completion dates for all
environmental reviews and authorizations that are reasonably anticipated as
being needed for a project, including the process for granting extensions
of any established dates. The guidance shall specify that lead Federal
agencies need not include the estimated intermediate and final completion
dates of any such reviews or authorizations until the design of a project
has sufficiently advanced so that they can be developed. In such cases, the
guidance shall instruct lead Federal agencies to estimate when the
project's design will be advanced enough to determine such dates. The
timelines shall account for any federally required decisions or permits
that are assumed by, or delegated to, State, tribal, or local agencies and
the extent to which any approval or permit to be issued by a Federal agency
is dependent upon the issuance of such a decision or permit.
(C) CEQ and OMB shall also develop guidance for applying One Federal
Decision whenever the lead agency is a State, tribal, or local agency
exercising an assignment or delegation of an agency's NEPA
responsibilities.
(c) Dashboard. All projects subject to 23 U.S.C.
139 and ``covered projects'' under 42 U.S.C. 4370m
shall be tracked on the Dashboard established under 42
U.S.C. 4370m-2(b). Other projects or classes of
projects subject to special environmental review and
authorization streamlining processes similar to those
referenced in this subsection may also be tracked on
the Dashboard at the discretion of the FPISC Executive
Director. The dates for milestones of all projects
tracked on the Dashboard shall be updated monthly, or
on another appropriate timeline as may be determined by
the FPISC Executive Director.
(d) Executive Order 13766. For purposes of
implementing Executive Order 13766 of January 24, 2017
(Expediting Environmental Reviews and Approvals for
High Priority Infrastructure Projects), all
infrastructure projects that meet the criteria for, and
are subject to, 23 U.S.C. 139, 33 U.S.C. 2348, or 42
U.S.C. 4370m-4370m-12 shall qualify as high priority
projects under Executive Order 13766. Other projects or
classes of projects subject to special environmental
review and authorization streamlining processes,
similar to those referenced in this subsection as may
be determined by the FPISC Executive Director in
consultation with OMB and CEQ, shall also qualify as
high priority infrastructure projects under Executive
Order 13766. The CEQ Chairman's responsibilities under
sections 2 and 3 of Executive Order 13766 shall be
satisfied by referring the project to the FPISC
Executive Director, the Secretary of Transportation, or
the Assistant Secretary of the Army for Civil Works, as
appropriate.
(e) Council on Environmental Quality.
(i) Directives. Within 30 days of the date of this order, the CEQ shall
develop an initial list of actions it will take to enhance and modernize
the Federal environmental review and authorization process. Such actions
should include issuing such regulations, guidance, and directives as CEQ
may deem necessary to:
(A) ensure optimal interagency coordination of environmental review and
authorization decisions, including by providing for an expanded role and
authorities for lead agencies, more clearly defined responsibilities for
cooperating and participating agencies, and Government-wide applicability
of NEPA decisions and analyses;
(B) ensure that environmental reviews and authorization decisions
involving multiple agencies are conducted in a manner that is concurrent,
synchronized, timely, and efficient;
(C) provide for agency use, to the maximum extent permitted by law, of
environmental studies, analysis, and decisions conducted in support
[[Page 40468]]
of earlier Federal, State, tribal, or local environmental reviews or
authorization decisions; and
(D) ensure that agencies apply NEPA in a manner that reduces unnecessary
burdens and delays as much as possible, including by using CEQ's authority
to interpret NEPA to simplify and accelerate the NEPA review process.
(ii) Dispute Resolution. Except where dispute resolution processes are
otherwise provided for in law, including under 42 U.S.C. 4370m-2, or by
Executive Order or other Presidential directive, upon request of a lead
Federal agency, cooperating agency, or participating agency, CEQ may
mediate interagency disputes arising between Federal agencies concerning
Federal environmental review or authorization decisions for any
infrastructure project pertaining to any environmental law, regulation,
order or policy, and shall facilitate resolution of any conflicting
positions of the relevant agencies.
(iii) Agency Procedures. CEQ shall form and lead an interagency working
group, consisting of the Director of OMB, agency CERPOs, and such other
representatives of agencies as CEQ deems appropriate. The working group
shall review the NEPA implementing regulations and other environmental
review and authorization processing policies of agencies that are members
of the FPISC to identify impediments to efficient and effective
environmental reviews and authorizations for infrastructure projects. The
working group shall also identify those agencies that require an action
plan to address identified impediments. Based on this review, agencies
shall develop action plans that set forth the actions they will take and
timelines for completing those actions, and they shall submit those action
plans to CEQ and OMB for comment. Each agency's action plan shall, at a
minimum, establish procedures for a regular review and update of
categorical exclusions, where appropriate.
(f) Federal Permitting Improvement Steering
Council.
(i) Organizational Support. Unless otherwise determined by the Director of
OMB, the General Services Administration (GSA) shall provide necessary
administrative and organizational support to the FPISC, including
personnel, procurement, and budget support. The GSA Administrator, or the
head of another agency designated by the Director of OMB, may delegate any
authority to the FPISC Executive Director necessary for the operation and
administration of the FPISC and the Office of the Executive Director, and
the Executive Director may redelegate these authorities, as appropriate.
(ii) Additional Duties. In addition to the duties and responsibilities
charged to the FPISC Executive Director under 42 U.S.C. 4370m-4370m-12 and
this order, the FPISC Executive Director may, upon request of a FPISC
member agency or a project sponsor, work with the lead agency or any
cooperating and participating agencies to facilitate the environmental
review and authorization process for any infrastructure project regardless
of whether the project is a ``covered project'' under 42 U.S.C. 4370m,
including by resolving disputes and promoting early coordination. The FPISC
Executive Director, the Director of OMB, or the Chairman of CEQ may
establish any appropriate policies or procedures concerning the FPISC
Executive Director's facilitation of the environmental review and
authorization process under this subsection. Agencies must cooperate with
the FPISC Executive Director with respect to the implementation of these
additional duties.
(g) Energy Corridors. The Departments of the
Interior and Agriculture, as appropriate, shall be the
lead agencies for facilitating the identification and
designation of energy right-of-way corridors on Federal
lands for Government-wide expedited environmental
review for the development of energy infrastructure
projects.
(h) The Department of the Interior shall provide to
OMB a strategy and recommendations for a multi-agency
reorganization effort that would further
[[Page 40469]]
the aims of this order. OMB, in consultation with the
Department of the Interior, shall coordinate with the
heads of other agencies affected to incorporate the
strategy, as appropriate, into the comprehensive
reorganization plan developed under Executive Order
13781 of March 13, 2017 (Comprehensive Plan for
Reorganizing the Executive Branch).
Sec. 6. Executive Order 13690 of January 30, 2015
(Establishing a Federal Flood Risk Management Standard
and a Process for Further Soliciting and Considering
Stakeholder Input), is revoked.
Sec. 7. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the
head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with
applicable law and subject to the availability of
appropriations.
(c) This order is not intended to, and does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against
the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any
other person.
(Presidential Sig.)
THE WHITE HOUSE,
August 15, 2017.
[FR Doc. 2017-18134
Filed 8-23-17; 11:15 am]
Billing code 3295-F7-P