Responsibly And Professionally Invigorating Development Act of 2013 (H.R. 2641; 113th Congress)

by Tom Marino

113th CONGRESS

1st Session

H. R. 2641

IN THE HOUSE OF REPRESENTATIVES

July 10, 2013

Mr. Marino (for himself, Mr. Bachus, Mr. Coble, Mr. Franks of Arizona, Mr. Smith of Texas, Mr. Amodei, and Mr. Owens) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Natural Resources, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To provide for improved coordination of agency actions in the preparation and adoption of environmental documents for permitting determinations, and for other purposes.

Section 1. Short title

This Act may be cited as the “Responsibly And Professionally Invigorating Development Act of 2013” or as the “RAPID Act”.

Sec. 2. Coordination of agency administrative operations for efficient decisionmaking

(a) In general–

Part I of chapter 5 of title 5, United States Code, is amended by inserting after subchapter II the following:

IIA Interagency Coordination Regarding Permitting–

Sec. 560. Coordination of agency administrative operations for efficient decisionmaking

(a) Congressional declaration of purpose–

The purpose of this subchapter is to establish a framework and procedures to streamline, increase the efficiency of, and enhance coordination of agency administration of the regulatory review, environmental decisionmaking, and permitting process for projects undertaken, reviewed, or funded by Federal agencies. This subchapter will ensure that agencies administer the regulatory process in a manner that is efficient so that citizens are not burdened with regulatory excuses and time delays.

(b) Definitions–

For purposes of this subchapter, the term—

(1) “agency” means any agency, department, or other unit of Federal, State, local, or Indian tribal government;

(2) “category of projects” means 2 or more projects related by project type, potential environmental impacts, geographic location, or another similar project feature or characteristic;

(3) “environmental assessment” means a concise public document for which a Federal agency is responsible that serves to—

(A) briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact;

(B) aid an agency’s compliance with NEPA when no environmental impact statement is necessary; and

(C) facilitate preparation of an environmental impact statement when one is necessary;

(4) “environmental impact statement” means the detailed statement of significant environmental impacts required to be prepared under NEPA ;

(5) “environmental review” means the Federal agency procedures for preparing an environmental impact statement, environmental assessment, categorical exclusion, or other document under NEPA ;

(6) “environmental decisionmaking process” means the Federal agency procedures for undertaking and completion of any environmental permit, decision, approval, review, or study under any Federal law other than NEPA for a project subject to an environmental review;

(7) “environmental document” means an environmental assessment or environmental impact statement, and includes any supplemental document or document prepared pursuant to a court order;

(8) “finding of no significant impact” means a document by a Federal agency briefly presenting the reasons why a project, not otherwise subject to a categorical exclusion, will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared;

(9) “lead agency” means the Federal agency preparing or responsible for preparing the environmental document;

(10) “NEPA” means the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(11) “project” means major Federal actions that are construction activities undertaken with Federal funds or that are construction activities that require approval by a permit or regulatory decision issued by a Federal agency;

(12) “project sponsor” means the agency or other entity, including any private or public-private entity, that seeks approval for a project or is otherwise responsible for undertaking a project; and

(13) “record of decision” means a document prepared by a lead agency under NEPA following an environmental impact statement that states the lead agency’s decision, identifies the alternatives considered by the agency in reaching its decision and states whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not adopted.

(c) Preparation of environmental documents–

Upon the request of the lead agency, the project sponsor shall be authorized to prepare any document for purposes of an environmental review required in support of any project or approval by the lead agency if the lead agency furnishes oversight in such preparation and independently evaluates such document and the document is approved and adopted by the lead agency prior to taking any action or making any approval based on such document.

(d) Adoption and use of documents–

(1) Documents prepared under nepa–

(A) Not more than 1 environmental impact statement and 1 environmental assessment shall be prepared under NEPA for a project (except for supplemental environmental documents prepared under NEPA or environmental documents prepared pursuant to a court order), and, except as otherwise provided by law, the lead agency shall prepare the environmental impact statement or environmental assessment. After the lead agency issues a record of decision, no Federal agency responsible for making any approval for that project may rely on a document other than the environmental document prepared by the lead agency.

(B) Upon the request of a project sponsor, a lead agency may adopt, use, or rely upon secondary and cumulative impact analyses included in any environmental document prepared under NEPA for projects in the same geographic area where the secondary and cumulative impact analyses provide information and data that pertains to the NEPA decision for the project under review.

(2) State environmental documents; supplemental documents–

(A) Upon the request of a project sponsor, a lead agency may adopt a document that has been prepared for a project under State laws and procedures as the environmental impact statement or environmental assessment for the project, provided that the State laws and procedures under which the document was prepared provide environmental protection and opportunities for public involvement that are substantially equivalent to NEPA .

(B) An environmental document adopted under subparagraph (A) is deemed to satisfy the lead agency’s obligation under NEPA to prepare an environmental impact statement or environmental assessment.

(C) In the case of a document described in subparagraph (A), during the period after preparation of the document but before its adoption by the lead agency, the lead agency shall prepare and publish a supplement to that document if the lead agency determines that—

(i) a significant change has been made to the project that is relevant for purposes of environmental review of the project; or

(ii) there have been significant changes in circumstances or availability of information relevant to the environmental review for the project.

(D) If the agency prepares and publishes a supplemental document under subparagraph (C), the lead agency may solicit comments from agencies and the public on the supplemental document for a period of not more than 45 days beginning on the date of the publication of the supplement.

(E) A lead agency shall issue its record of decision or finding of no significant impact, as appropriate, based upon the document adopted under subparagraph (A), and any supplements thereto.

(3) Contemporaneous projects–

If the lead agency determines that there is a reasonable likelihood that the project will have similar environmental impacts as a similar project in geographical proximity to the project, and that similar project was subject to environmental review or similar State procedures within the 5-year period immediately preceding the date that the lead agency makes that determination, the lead agency may adopt the environmental document that resulted from that environmental review or similar State procedure. The lead agency may adopt such an environmental document, if it is prepared under State laws and procedures only upon making a favorable determination on such environmental document pursuant to paragraph (2)(A).

(e) Participating agencies–

(1) In general–

The lead agency shall be responsible for inviting and designating participating agencies in accordance with this subsection. The lead agency shall provide the invitation or notice of the designation in writing.

(2) Federal participating agencies–

Any Federal agency that is required to adopt the environmental document of the lead agency for a project shall be designated as a participating agency and shall collaborate on the preparation of the environmental document, unless the Federal agency informs the lead agency, in writing, by a time specified by the lead agency in the designation of the Federal agency that the Federal agency—

(A) has no jurisdiction or authority with respect to the project;

(B) has no expertise or information relevant to the project; and

(C) does not intend to submit comments on the project.

(3) Invitation–

The lead agency shall identify, as early as practicable in the environmental review for a project, any agencies other than an agency described in paragraph (2) that may have an interest in the project, including, where appropriate, Governors of affected States, and heads of appropriate tribal and local (including county) governments, and shall invite such identified agencies and officials to become participating agencies in the environmental review for the project. The invitation shall set a deadline of 30 days for responses to be submitted, which may only be extended by the lead agency for good cause shown. Any agency that fails to respond prior to the deadline shall be deemed to have declined the invitation.

(4) Effect of declining participating agency invitation–

Any agency that declines a designation or invitation by the lead agency to be a participating agency shall be precluded from submitting comments on any document prepared under NEPA for that project or taking any measures to oppose, based on the environmental review, any permit, license, or approval related to that project.

(5) Effect of designation–

Designation as a participating agency under this subsection does not imply that the participating agency—

(A) supports a proposed project; or

(B) has any jurisdiction over, or special expertise with respect to evaluation of, the project.

(6) Cooperating agency–

A participating agency may also be designated by a lead agency as a “cooperating agency” under the regulations contained in part 1500 of title 40, Code of Federal Regulations, as in effect on January 1, 2011. Designation as a cooperating agency shall have no effect on designation as participating agency. No agency that is not a participating agency may be designated as a cooperating agency.

(7) Concurrent reviews–

Each Federal agency shall—

(A) carry out obligations of the Federal agency under other applicable law concurrently and in conjunction with the review required under NEPA; and

(B) in accordance with the rules made by the Council on Environmental Quality pursuant to subsection (n)(1), make and carry out such rules, policies, and procedures as may be reasonably necessary to enable the agency to ensure completion of the environmental review and environmental decisionmaking process in a timely, coordinated, and environmentally responsible manner.

(8) Comments–

Each participating agency shall limit its comments on a project to areas that are within the authority and expertise of such participating agency. Each participating agency shall identify in such comments the statutory authority of the participating agency pertaining to the subject matter of its comments. The lead agency shall not act upon, respond to or include in any document prepared under NEPA, any comment submitted by a participating agency that concerns matters that are outside of the authority and expertise of the commenting participating agency.

(f) Project initiation request–

(1) Notice–

A project sponsor shall provide the Federal agency responsible for undertaking a project with notice of the initiation of the project by providing a description of the proposed project, the general location of the proposed project, and a statement of any Federal approvals anticipated to be necessary for the proposed project, for the purpose of informing the Federal agency that the environmental review should be initiated.

(2) Lead agency initiation–

The agency receiving a project initiation notice under paragraph (1) shall promptly identify the lead agency for the project, and the lead agency shall initiate the environmental review within a period of 45 days after receiving the notice required by paragraph (1) by inviting or designating agencies to become participating agencies, or, where the lead agency determines that no participating agencies are required for the project, by taking such other actions that are reasonable and necessary to initiate the environmental review.

(g) Alternatives analysis–

(1) Participation–

As early as practicable during the environmental review, but no later than during scoping for a project requiring the preparation of an environmental impact statement, the lead agency shall provide an opportunity for involvement by cooperating agencies in determining the range of alternatives to be considered for a project.

(2) Range of alternatives–

Following participation under paragraph (1), the lead agency shall determine the range of alternatives for consideration in any document which the lead agency is responsible for preparing for the project, subject to the following limitations:

(A) No evaluation of certain alternatives–

No Federal agency shall evaluate any alternative that was identified but not carried forward for detailed evaluation in an environmental document or evaluated and not selected in any environmental document prepared under NEPA for the same project.

(B) Only feasible alternatives evaluated–

Where a project is being constructed, managed, funded, or undertaken by a project sponsor that is not a Federal agency, Federal agencies shall only be required to evaluate alternatives that the project sponsor could feasibly undertake, consistent with the purpose of and the need for the project, including alternatives that can be undertaken by the project sponsor and that are technically and economically feasible.

(3) Methodologies–

(A) In general–

The lead agency shall determine, in collaboration with cooperating agencies at appropriate times during the environmental review, the methodologies to be used and the level of detail required in the analysis of each alternative for a project. The lead agency shall include in the environmental document a description of the methodologies used and how the methodologies were selected.

(B) No evaluation of inappropriate alternatives–

When a lead agency determines that an alternative does not meet the purpose and need for a project, that alternative is not required to be evaluated in detail in an environmental document.

(4) Preferred alternative–

At the discretion of the lead agency, the preferred alternative for a project, after being identified, may be developed to a higher level of detail than other alternatives in order to facilitate the development of mitigation measures or concurrent compliance with other applicable laws if the lead agency determines that the development of such higher level of detail will not prevent the lead agency from making an impartial decision as to whether to accept another alternative which is being considered in the environmental review.

(5) Employment analysis–

The evaluation of each alternative in an environmental impact statement or an environmental assessment shall identify the potential effects of the alternative on employment, including potential short-term and long-term employment increases and reductions and shifts in employment.

(h) Coordination and scheduling–

(1) Coordination plan–

(A) In general–

The lead agency shall establish and implement a plan for coordinating public and agency participation in and comment on the environmental review for a project or category of projects to facilitate the expeditious resolution of the environmental review.

(B) Schedule–

(i) In general–

The lead agency shall establish as part of the coordination plan for a project, after consultation with each participating agency and, where applicable, the project sponsor, a schedule for completion of the environmental review. The schedule shall include deadlines, consistent with subsection (i), for decisions under any other Federal laws (including the issuance or denial of a permit or license) relating to the project that is covered by the schedule.

(ii) Factors for consideration–

In establishing the schedule, the lead agency shall consider factors such as—

(I) the responsibilities of participating agencies under applicable laws;

(II) resources available to the participating agencies;

(III) overall size and complexity of the project;

(IV) overall schedule for and cost of the project;

(V) the sensitivity of the natural and historic resources that could be affected by the project; and

(VI) the extent to which similar projects in geographic proximity were recently subject to environmental review or similar State procedures.

(iii) Compliance with the schedule–

(I) All participating agencies shall comply with the time periods established in the schedule or with any modified time periods, where the lead agency modifies the schedule pursuant to subparagraph (D).

(II) The lead agency shall disregard and shall not respond to or include in any document prepared under NEPA, any comment or information submitted or any finding made by a participating agency that is outside of the time period established in the schedule or modification pursuant to subparagraph (D) for that agency’s comment, submission or finding.

(III) If a participating agency fails to object in writing to a lead agency decision, finding or request for concurrence within the time period established under law or by the lead agency, the agency shall be deemed to have concurred in the decision, finding or request.

(C) Consistency with other time periods–

A schedule under subparagraph (B) shall be consistent with any other relevant time periods established under Federal law.

(D) Modification–

The lead agency may—

(i) lengthen a schedule established under subparagraph (B) for good cause; and

(ii) shorten a schedule only with the concurrence of the cooperating agencies.

(E) Dissemination–

A copy of a schedule under subparagraph (B), and of any modifications to the schedule, shall be—

(i) provided within 15 days of completion or modification of such schedule to all participating agencies and to the project sponsor; and

(ii) made available to the public.

(F) Roles and responsibility of lead agency–

With respect to the environmental review for any project, the lead agency shall have authority and responsibility to take such actions as are necessary and proper, within the authority of the lead agency, to facilitate the expeditious resolution of the environmental review for the project.

(i) Deadlines–

The following deadlines shall apply to any project subject to review under NEPA and any decision under any Federal law relating to such project (including the issuance or denial of a permit or license or any required finding):

(1) Environmental review deadlines–

The lead agency shall complete the environmental review within the following deadlines:

(A) Environmental impact statement projects–

For projects requiring preparation of an environmental impact statement—

(i) the lead agency shall issue an environmental impact statement within 2 years after the earlier of the date the lead agency receives the project initiation request or a Notice of Intent to Prepare an Environmental Impact Statement is published in the Federal Register; and

(ii) in circumstances where the lead agency has prepared an environmental assessment and determined that an environmental impact statement will be required, the lead agency shall issue the environmental impact statement within 2 years after the date of publication of the Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register.

(B) Environmental assessment projects–

For projects requiring preparation of an environmental assessment, the lead agency shall issue a finding of no significant impact or publish a Notice of Intent to Prepare an Environmental Impact Statement in the Federal Register within 1 year after the earlier of the date the lead agency receives the project initiation request, makes a decision to prepare an environmental assessment, or sends out participating agency invitations.

(2) Extensions–

(A) Requirements–

The environmental review deadlines may be extended only if—

(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii) the deadline is extended by the lead agency for good cause.

(B) Limitation–

The environmental review shall not be extended by more than 1 year for a project requiring preparation of an environmental impact statement or by more than 180 days for a project requiring preparation of an environmental assessment.

(3) Environmental review comments–

(A) Comments on draft environmental impact statement–

For comments by agencies and the public on a draft environmental impact statement, the lead agency shall establish a comment period of not more than 60 days after publication in the Federal Register of notice of the date of public availability of such document, unless—

(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii) the deadline is extended by the lead agency for good cause.

(B) Other comments–

For all other comment periods for agency or public comments in the environmental review process, the lead agency shall establish a comment period of no more than 30 days from availability of the materials on which comment is requested, unless—

(i) a different deadline is established by agreement of the lead agency, the project sponsor, and all participating agencies; or

(ii) the deadline is extended by the lead agency for good cause.

(4) Deadlines for decisions under other laws–

Notwithstanding any other provision of law, in any case in which a decision under any other Federal law relating to the undertaking of a project being reviewed under NEPA (including the issuance or denial of a permit or license) is required to be made, the following deadlines shall apply:

(A) Decisions prior to record of decision or finding of no significant impact–

If a Federal agency is required to approve, or otherwise to act upon, a permit, license, or other similar application for approval related to a project prior to the record of decision or finding of no significant impact, such Federal agency shall approve or otherwise act not later than the end of a 90-day period beginning—

(i) after all other relevant agency review related to the project is complete; and

(ii) after the lead agency publishes a notice of the availability of the final environmental impact statement or issuance of other final environmental documents, or no later than such other date that is otherwise required by law, whichever event occurs first.

(B) Other decisions–

With regard to any approval or other action related to a project by a Federal agency that is not subject to subparagraph (A), each Federal agency shall approve or otherwise act not later than the end of a period of 180 days beginning—

(i) after all other relevant agency review related to the project is complete; and

(ii) after the lead agency issues the record of decision or finding of no significant impact, unless a different deadline is established by agreement of the Federal agency, lead agency, and the project sponsor, where applicable, or the deadline is extended by the Federal agency for good cause, provided that such extension shall not extend beyond a period that is 1 year after the lead agency issues the record of decision or finding of no significant impact.

(C) Failure to act–

In the event that any Federal agency fails to approve, or otherwise to act upon, a permit, license, or other similar application for approval related to a project within the applicable deadline described in subparagraph (A) or (B), the permit, license, or other similar application shall be deemed approved by such agency and the agency shall take action in accordance with such approval within 30 days of the applicable deadline described in subparagraph (A) or (B).

(D) Final agency action–

Any approval under subparagraph (C) is deemed to be final agency action, and may not be reversed by any agency. In any action under chapter 7 seeking review of such a final agency action, the court may not set aside such agency action by reason of that agency action having occurred under this paragraph.

(j) Issue identification and resolution–

(1) Cooperation–

The lead agency and the participating agencies shall work cooperatively in accordance with this section to identify and resolve issues that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable laws.

(2) Lead agency responsibilities–

The lead agency shall make information available to the participating agencies as early as practicable in the environmental review regarding the environmental, historic, and socioeconomic resources located within the project area and the general locations of the alternatives under consideration. Such information may be based on existing data sources, including geographic information systems mapping.

(3) Participating agency responsibilities–

Based on information received from the lead agency, participating agencies shall identify, as early as practicable, any issues of concern regarding the project’s potential environmental, historic, or socioeconomic impacts. In this paragraph, issues of concern include any issues that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project.

(4) Issue resolution–

(A) Meeting of participating agencies–

At any time upon request of a project sponsor, the lead agency shall promptly convene a meeting with the relevant participating agencies and the project sponsor, to resolve issues that could delay completion of the environmental review or could result in denial of any approvals required for the project under applicable laws.

(B) Notice that resolution cannot be achieved–

If a resolution cannot be achieved within 30 days following such a meeting and a determination by the lead agency that all information necessary to resolve the issue has been obtained, the lead agency shall notify the heads of all participating agencies, the project sponsor, and the Council on Environmental Quality for further proceedings in accordance with section 204 of NEPA, and shall publish such notification in the Federal Register.

(k) Report to congress–

The head of each Federal agency shall report annually to Congress—

(1) the projects for which the agency initiated preparation of an environmental impact statement or environmental assessment;

(2) the projects for which the agency issued a record of decision or finding of no significant impact and the length of time it took the agency to complete the environmental review for each such project;

(3) the filing of any lawsuits against the agency seeking judicial review of a permit, license, or approval issued by the agency for an action subject to NEPA, including the date the complaint was filed, the court in which the complaint was filed, and a summary of the claims for which judicial review was sought; and

(4) the resolution of any lawsuits against the agency that sought judicial review of a permit, license, or approval issued by the agency for an action subject to NEPA.

(l) Limitations on claims–

(1) In general–

Notwithstanding any other provision of law, a claim arising under Federal law seeking judicial review of a permit, license, or approval issued by a Federal agency for an action subject to NEPA shall be barred unless—

(A) in the case of a claim pertaining to a project for which an environmental review was conducted and an opportunity for comment was provided, the claim is filed by a party that submitted a comment during the environmental review on the issue on which the party seeks judicial review, and such comment was sufficiently detailed to put the lead agency on notice of the issue upon which the party seeks judicial review; and

(B) filed within 180 days after publication of a notice in the Federal Register announcing that the permit, license, or approval is final pursuant to the law under which the agency action is taken, unless a shorter time is specified in the Federal law pursuant to which judicial review is allowed.

(2) New information–

The preparation of a supplemental environmental impact statement, when required, is deemed a separate final agency action and the deadline for filing a claim for judicial review of such action shall be 180 days after the date of publication of a notice in the Federal Register announcing the record of decision for such action. Any claim challenging agency action on the basis of information in a supplemental environmental impact statement shall be limited to challenges on the basis of that information.

(3) Rule of construction–

Nothing in this subsection shall be construed to create a right to judicial review or place any limit on filing a claim that a person has violated the terms of a permit, license, or approval.

(m) Categories of projects–

The authorities granted under this subchapter may be exercised for an individual project or a category of projects.

(n) Effective date–

The requirements of this subchapter shall apply only to environmental reviews and environmental decisionmaking processes initiated after the date of enactment of this subchapter.

(o) Applicability–

Except as provided in subsection (p), this subchapter applies, according to the provisions thereof, to all projects for which a Federal agency is required to undertake an environmental review or make a decision under an environmental law for a project for which a Federal agency is undertaking an environmental review.

(p) Savings clause–

Nothing in this section shall be construed to supersede, amend, or modify sections 134, 135, 139, 325, 326, and 327 of title 23, United States Code, sections 5303 and 5304 of title 49, United States Code, or subtitle C of title I of division A of the Moving Ahead for Progress in the 21st Century Act and the amendments made by such subtitle (Public Law 112–141).

(b) Technical amendment–

The table of sections for chapter 5of title 5, United States Code, is amended by inserting after the item relating to subchapter II the following:

Subchapter IIA—Interagency Coordination Regarding Permitting 560. Coordination of agency administrative operations for efficient decisionmaking. .

(c) Regulations–

(1) Council on environmental quality–

Not later than 180 days after the date of enactment of this title, the Council on Environmental Quality shall amend the regulations contained in part 1500 of title 40, Code of Federal Regulations, to implement the provisions of this title and the amendments made by this title, and shall by rule designate States with laws and procedures that satisfy the criteria under section 560(d)(2)(A) of title 5, United States Code.

(2) Federal agencies–

Not later than 120 days after the date that the Council on Environmental Quality amends the regulations contained in part 1500 of title 40, Code of Federal Regulations, to implement the provisions of this title and the amendments made by this title, each Federal agency with regulations implementing the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall amend such regulations to implement the provisions of this subchapter.