On November 27, 2020, the Federal Permitting Improvement Steering Council (Permitting Council) issued a proposed rule to add mining as a sector eligible for streamlined permitting under Title 41 of the Fixing America’s Surface Transportation Act (FAST-41). Public comments on the proposed rule are due December 28, 2020.
Enacted in 2015, FAST-41 created a new governance structure, set of procedures, and funding authorities designed to improve the timeliness, predictability, and transparency of the Federal environmental review and authorization process for covered infrastructure projects. FAST-41 is a voluntary program for eligible large-scale infrastructure projects and provides project sponsors with enhanced coordination among 13 Federal agencies to ensure more streamlined environmental reviews and authorizations. Current FAST–41 sectors include renewable and conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, and manufacturing.
There are several benefits for sponsors of major infrastructure projects to participate in the FAST-41 program:
- The program is based on consultations that occur earlier on in the process, allowing for enhanced coordination among permitting agencies to support streamlined permit reviews.
- Once a comprehensive permitting schedule and completion target milestones are established, the schedule is posted to the public Permitting Dashboard, promoting greater transparency and accountability.
- A number of mechanisms have been instituted to support predictability and adherence to the permitting schedule. Deviations from the established schedule trigger review by the Permitting Council, and agency performance is tracked by Congress.
- Enhanced legal protections are given to covered projects, limiting the risk of future litigation delays.
- The FAST-41 process encourages state participation, fostering greater coordination and cooperation across multiple jurisdictions.
The addition of mining as a FAST–41 sector would allow a qualified mining infrastructure project to become a FAST–41 covered project. To qualify, the project must be located in the United States and require environmental review and authorization by a Federal agency. A project also must: (a) be subject to review under the National Environmental Policy Act (NEPA); (b) be likely to require a total investment of $200 million or more; and (c) not qualify for abbreviated authorization or environmental review processes under any other applicable law.
Projects that do not meet the $200 million threshold may still qualify as a FAST-41 covered project if, in the opinion of the Permitting Council, the size and complexity of the project make it likely to benefit from the enhanced oversight and coordination provided by FAST–41, including projects likely to require environmental review and authorization from multiple agencies or projects for which the preparation of an environmental impact statement (EIS) is required.
Public comments on the proposed rule are due by December 28, 2020. The Permitting Council has specifically solicited comments on whether all mining should be designated as a FAST-41 sector, or whether only non-energy mining or only mining on Federally-managed lands should be designated. After considering the comments received, the Permitting Council will vote on the proposal to include mining as a FAST–41 sector.
Squire Patton Boggs will continue to monitor developments related to FAST-41.