Greater Availability for Tribes and Native Corporations to Join Environmental Program 

August, 2022 - Schwabe, Williamson & Wyatt

As a result of the Infrastructure Investment and Jobs Act, the federal government’s FAST-41 permitting project can now be used by Tribes and Alaska Native Corporations to potentially expedite and improve the permitting process for infrastructure projects that are either being performed by Tribes or Alaska Native Corporations, or are being performed on land owned by Tribes or Alaska Native Corporations. 


In 2015, Congress created FAST-41, a program designed to improve the federal environmental review and authorization process for certain infrastructure projects. FAST-41 is managed by the Federal Permitting Improvement Steering Council (“Permitting Council”), which is comprised of various agency representatives. For covered projects admitted to the FAST-41 project, a specific federal agency will be designated as the lead agency for the project’s permitting process. That lead agency is then required to develop a project-specific plan and timetable for the completion of environmental reviews and authorizations. The goal is to promote early consultation and enhanced interagency coordination, thereby streamlining and speeding up the permitting process.


For example, within 60 days of admission to the FAST-41 program, the lead federal agency for a project must coordinate with the project sponsor and the other federal agencies issuing permits or authorizations to develop a Coordinated Project Plan (“CPP”) and action milestone estimates. The CPP will be the guiding document for the project, and may reduce the need for memorandum of understandings with various federal agencies. 


To provide for accountability, the lead federal agency for a FAST-41 project must also post target completion dates for permitting actions on an online “Permitting Dashboard,” maintained by the Permitting Council. The applicant and other stakeholders can use this dashboard to track the status of federal permitting activities, with the idea that such public information will improve coordination, transparency, predictability, and accountability. 


The type of infrastructure projects that could be admitted to the FAST-41 program are broad and include conventional energy production, renewable energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resources, broadband, pipelines, manufacturing, mining, and carbon capture sectors.


Prior to the Infrastructure Investment and Jobs Act, FAST-41 was generally only available for projects that had an estimated cost of $200,000,000 or more. As such, many Tribal and Alaska Native Corporation projects were not eligible, particularly those that were attempting to address energy, transportation, or other infrastructure needs in Reservations or Alaska Villages. For example, only three infrastructure projects in Alaska currently appear on the Permitting Dashboard as using the FAST-41 process. 


Section 70801 of the Infrastructure Investment and Jobs Act, however, amended the FAST-41 program to make it more readily available to projects involving Tribes and Alaska Native Corporations. Now, any project of any dollar value is eligible to use the FAST-41 process, provided  it is:


  • subject to NEPA,
  • sponsored by a Tribe, an Alaska Native Corporation, or a Native Hawaiian Organization, and
  • located at least in part on land owned or under the jurisdiction of a Tribe, an Alaska Native Corporation, or a Native Hawaiian Organization,

is eligible to use the FAST-41 process, regardless of the dollar value of the project. Therefore, infrastructure projects that involve land owned by Tribes and Alaska Native Corporations may now be eligible to use the FAST-41 process. 


            While FAST-41 does not change any of the laws or regulations governing the standards that must be met to receive a permit, or change who makes the final decision regarding whether to issue a permit, it may provide Tribes and Alaska Native Corporations with the opportunity for a more streamlined and speedy permitting process. At the very least, it may provide an opportunity for Tribes and Alaska Native Corporations to require federal agencies to publicly disclose where the agency is in the permitting process and implement specific deadlines for completion of various permitting activities and decisions by the agency. 


            Before undertaking federal permitting for infrastructure projects, Tribes and Alaska Native Corporations may want ‎to consider FAST-41 for its more streamlined and transparent process.‎ There is an online portal for Tribes and Alaska Native Corporations to apply for their project to be in the FAST-41 program.


This article summarizes aspects of the law and does not constitute legal advice. For legal advice ‎for your situation, you should contact an attorney.


 



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