Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, 40463-40469 [2017-18134]

Agencies

• Executive Office of the President

[Federal Register Volume 82, Number 163 (Thursday, August 24, 2017)]
[Presidential Documents]
[Pages 40463-40469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18134]



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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

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                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

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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

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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.

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  (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

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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