Leah Pilconis
Leah Pilconis

Delay, waste, redundancy, inconsistency? We must be talking about environmental permitting!

Fortunately, as we talk today with Associated General Contractors (AGC) of America senior counsel Leah Pilconis, we feel a refreshing breeze of common sense wafting in. During the Infrastructure Imperative conference Nov. 1315, Leah will report on meetings with such federal agencies as EPA, Army Corps of Engineers, and Fish and Wildlife Service during AGC’s recent Environmental Conference. Key staff at those and other agencies are working to implement President Donald Trump’s streamlining goals, and Leah will report on their efforts—important work going on behind the scenes that’s not widely publicized in the press.

Leah works closely with federal agencies to monitor, report on, and make recommendations about the significant rule-makings that impact construction, preparing comments and tools to ensure the position of AGC members is well understood.

Perhaps the most uplifting revelation of her talk in Cleveland next month will be news about the EPA. Spoiler alert: Since the president took office, the agency’s eliminated or set aside dozens of rules by listing them as completed or putting them on the inactive list. No, you haven’t died and gone to Permitting Heaven. But you will feel like singing with a harp when you listen to Leah’s explanation of what’s happening and what’s to come.

Public Works (PW): Is the pre-construction permitting process really such a big deal?
Leah: Most projects need environmental approval pursuant to MANY environmental laws, and those laws are administered by MANY different government agencies at the federal, state, and local levels.

The process is very complex, time-intensive and costly, especially for larger infrastructure projects because they typically don't qualify for the more efficient general permitting procedures. They need to obtain individual permits on a project-by-project basis.

PW: Which means … what, in terms of time and money?
Leah: It can take several years and millions of dollars to get clearance, even if the goal is to develop green infrastructure or improve the environment.

PW: What’s the most common and/or egregious obstacle project owners face in this hoop-jumping contest?
Leah: Time and money wasted on redoing analyses and reviews, collecting duplicative information from applicants that could have been satisfied during the National Environmental Policy Act (NEPA) process—it’s a choke point in the overall permitting process.

PW: Where is the waste occurring?
Leah: Completing a NEPA impact statement is estimated to take almost five years and cost $6.6 million; a Clean Water Act 404 permit [issued by the Army Corps of Engineers], 780 days and more than $270,000. That’s how you get a seven-year delay on starting an infrastructure project.

AGC proposes the Corps participate more fully early in the NEPA process for any project with water impacts. Monitoring and wetland delineation information and all the mitigation and environmental consultation work performed during NEPA would be sufficient to satisfy and comply with the [404] permitting process—and you wouldn't need what we call a do-over.

It would be more work on the front end but would streamline the whole process and reduce costs.

PW: Kind of difficult to comply when you’re dealing with two separate processes—and that’s probably not an isolated occurrence, is it?
Leah: Here’s another example: With the clean water program, the Corps issues the permit but EPA has a role, too. This joint administration in the 404 program has really created inconsistency, delay and significant uncertainty.

Project proponents fear they're not going to be able to rely on jurisdictional determinations, that EPA might come in and undo permits the Corps has issued. There's this continuing question of whether EPA will get involved at any point or even disagree with the Corps’ decision-making after the permit has been issued and relied upon.

THIS is what makes getting environmental approvals for infrastructure projects so torturous.
AGC of America THIS is what makes getting environmental approvals for infrastructure projects so torturous.

PW: Tell us about the changes under the Trump administration.
Leah: Rebuilding Infrastructure in America’s proposed Clean Water Act revisions would consolidate jurisdictional determinations with the Corps, removing EPA’s authority to veto a permit.

But the infrastructure plan is just a plan. It signals the administration’s principles and priorities, but it’s not legislation.

That said, agencies have already started to respond to the plan. The Corps has formed an infrastructure initiative team and held stakeholder sessions focused just on permitting improvements.

PW: What about the president’s executive orders regarding environmental permitting?
Leah: They’ve had a more immediate and discernible effect. He's directed regulatory agencies to launch a full-out review of laws on the books—everything’s up for review and reconsideration. In a couple cases, he asked agencies to review specific rules, like the Waters of the U.S. rule administered by EPA and the Corps.

He also directed them to identify existing regulations for future repeal for every new rule proposed. They’re doing this while operating under a strict regulatory cost cap, so this has really slowed down the regulatory machine.

PW: But amped up efficiencies, too?
Leah: Right. The president has directed agencies to put forth a plan to eliminate, restructure, or merge redundant or nonessential programs and activities. Right now, for example, EPA and the Interior Department are reorganizing their regional offices to try to improve coordination and efficiencies.

I also need to mention executive order No. 13807 (“Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” August 2017), which has gotten a lot of press. Agencies have two years to complete the environmental review process for what he's calling “major” projects. Significant actions include directing the Council on Environmental Quality (CQ) to review its NEPA regulations and giving the council new authority to mediate interagency disputes. The Office of Management and Budget must implement an accountability system to track and score agency performance. So this order has some real teeth to it.

Pursuant to this, a dozen federal agencies signed a memorandum of understanding, committing to follow through on this more predictable and transparent and timely review process.

It's expected that many proposed reforms are ultimately going to be carried out via executive authority. We are seeing a lot of movement, and even more proposed rules coming that are intended to streamline environmental programs that are on the books.

Coming next month at the Infrastructure Imperative conference: Hear first-hand about agency changes already in progress triggered by President Trump’s streamlining priorities. Click here for FREE registration.

This article originally appeared on the website of MFE sister brand Public Works.