Wednesday, September 13, 2017

For years, members of Congress have criticized the federal infrastructure permitting process. While often justified, today’s system is actually better and more efficient than it was 20 years ago. Still, there is room for improvement, and the Trump administration’s main challenge is how to improve infrastructure permitting while ensuring that the result withstands the almost-inevitable court review.

This issue is especially important for encouraging public-private partnerships, which has emerged as a cornerstone of the administration’s infrastructure plan. Officials recognize that the only way to attract private sector funding is by overcoming concerns about regulatory delays.

Will the administration’s plan work? Yes, but only if they build on existing reforms that have proven effective.

First, the main delays with federal permitting usually stem from three laws: the National Environmental Protection Act, the Clean Water Act and the Endangered Species Act. All require compliance with regulations created in keeping with the Administrative Procedures Act, which sets rules on public notice and regulation justification.

The Trump administration and Congress could try changing the laws, but this appears unlikely. Agencies could try changing the laws’ rules, but that is time-consuming and certain to spark litigation.

The best option, in my view, is through wider adoption of a process that unifies a project’s permit applications under a single “one-stop shop,” overseen by a designated federal official. That official becomes the arbiter among agencies and ensures a permit application does get not bogged down.

This model has worked in Europe for years. A version of it also helped to accelerate New Orleans’ rebuilding after Hurricane Katrina. In that instance, the Corps of Engineers had the lead and coordinated action with federal agencies.

Second, there needs to be greater flexibility to reflect projects’ varying degrees of potential environmental impact. For example, a permit request to build a one-lane road extension can be handled faster than a permit request to build a multiple-lane bridge over a river. Projects that require mitigation for wetlands loss requires even more time.

When I took command of the Corps of Engineers Mississippi Valley Division, we instituted a new “triage” system that used specific timelines based on a project’s potential impact. For a simple permit request, we would produce an answer within 30 days. A more complicated request would have an answer within 90 days, and a complex application involving other agencies would see a response within 180 days.

Once, in response to a federal court action that potentially enjoined the Corps from operations on the Mississippi River and tributaries, we committed to a complete revision of our Mississippi River Environmental Impact Statement. We committed to complete the task within one year, despite some officials’ angst that a comprehensive multiple-agency effort that included the U.S. Coast Guard, Environmental Protection Agency, Interior Department and several states could not be completed within that time.

But the district leaders in charge were firm and sure enough, the working group produced the new impact statement and it was excellent.

Having this timetable made our division’s operations more efficient and reduced the problem of endless reviews. The lesson: Jobs expand or contract to fill a timeline.

Third, the administration and Congress have to accept that politically appealing actions can backfire, especially budget cuts on permitting departments. This is a classic self-defeating strategy because project sponsors need federal officials who can write legally defensible documents that accompany the permit approvals. These documents include records of decision and environmental impact statements.

While Corps of Engineers Commander, I dealt with several members of Congress who thought the best way to promote a favored project was by cutting our permitting budget.

One well-known Republican who wanted Corps approval of a large energy project responded to a delay by cutting the Corps’ permit budget. I told him I would commit to decisions within specific time frames for all projects, including his, but he had to fund our operations. He declined.

Too bad — that project would have had faster approval with adequate permit funding.

Finally, while there is much that the federal government can do to streamline permitting, public-private partnerships also have to be smart about the process. That means anticipating roadblocks and taking action to reduce delays.

Two years ago, the U.S. Fish & Wildlife Service (FWS) listed the northern long-eared bat as “threatened” under the Endangered Species Act. That triggered immediate delays on several logging and construction operations in the Northeast area. But one large operation saw this coming and conducted its own impact study, which it quickly submitted to FWS. The company avoided six months of construction delays.

Retired Army Lt. Gen. Robert Flowers, PE, former Commanding General of the Army Corps of Engineers, is a senior adviser at Dawson & Associates in Washington, D.C. He can be reached at RFlowers@Dawsonassociates.com.

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