APWA Policy Priorities for Streamlining Permitting in Debt Ceiling Agreement

The agreement included nearly all the structural components of the BUILDER Act (sponsored by one of the key ceiling negotiators, Rep. Garrett Graves), which APWA President Keith Pugh testified before Congress in support of as part of efforts to streamline the National Environmental Policy Act (NEPA) process. His testimony was based on APWA public policy priorities, which in turn were based on the experiences of APWA members. These are the most significant reforms to NEPA since 1982 and include:

• Implementing One Federal Decision for all projects that undergo NEPA reviews, facilitating the designation of a lead agency to set a permitting schedule and utilization of a single document for such reviews involving multiple agencies.
  • If there are two or more federal agencies involved in a proposed action, the agencies would be required to determine, by letter or memorandum, which agency would act as the lead agency. The decision would be based on several factors, including the extent and duration of an agency’s involvement and expertise related to the action’s environmental effects. Agencies could appoint federal, state, tribal, or local agencies as joint lead or cooperating agencies.
  • A lead agency would have to create procedures allowing a project sponsor to prepare an environmental assessment (EA) or environmental impact statement (EIS) under the agency’s supervision to expedite the process. The agency would have to independently evaluate the environmental document and take responsibility for the content.
• Setting page and time limits for the completion of environmental documents and providing a right of action to project applicants if the agency does not adhere to deadlines.
  • One-year deadline and 75-page limit for EA.
  • Two-year maximum and 150-page limit for EIS unless a proposed action is deemed to be extraordinarily complex in which case the page limit is 300.
  • A project sponsor could petition a court to order the agency to act if it doesn’t meet its deadline. If the court determines the agency failed to act within the applicable deadline, the agency would generally be required to act not later than 90 days from the date the order was issued. Applicants can also agree with agencies to extend the deadlines.
• Agencies can adopt categorical exclusions from other agencies’ NEPA procedures. They would have to consult with the other agency to ensure the adoption is appropriate and identify it publicly.
  • Agencies don’t have to prepare environmental analyses under NEPA if the proposed action isn’t final, is covered by a categorical exclusion, or if the analyses would conflict with the requirements of another law.
• Allow agencies to consider the “reasonably foreseeable” environmental effects of proposed major actions and a “reasonable range” of alternatives, including an analysis of the negative environmental impacts of not implementing a proposed action.
• Clarifying the definition of a “major federal action” under NEPA, including a list of actions that do not qualify as such.
• Programmatic Reviews: Agencies would be able to rely on an analysis from an initial programmatic environmental review — those analyzing a policy, program, or group of actions — in a subsequent document for a related action if it occurs within five years and there’s no substantial new information. Agencies could rely on these reviews after five years if they reevaluate the initial analysis and underlying assumptions.
• A study on modernizing the NEPA process by utilizing technologies to create an online portal to streamline communications and data sharing between agencies and project applicants.

Only significant part of BUILDER Act not included was judicial review, a Republican priority which is to be considered as part of a separate agreement later this year paired with the Democratic priority of expanding transmission for renewable energy. For a visual reference of the process changes click here.

Non-Permitting Provisions in Debt Ceiling Agreement

The ceiling is lifted until January 2025 and caps nondefense spending to current fiscal levels for 2024, then to an increase of 1 percent for fiscal 2025. After 2025, though, those spending limits would be unenforceable appropriations targets rather than statutory caps. The deal does contain language initially pushed by some House Republicans earlier this year: an automatic continuing resolution that will kick in if Congress fails to reach an appropriations agreement later this year. Additional components include:

• No sharp cuts to non-defense discretionary spending, essentially flat funding levels
• None of the recissions impact the Bipartisan Infrastructure Law or the IRA
• Significant changes to the Clean Water Act are not in H.R. 3746
• Recission of $2.2 billion for highway Infrastructure appropriated in CRRSAA
• Enacts first ever Administrative Pay-Go to hold agencies accountable for the full cost of Executive rules and regulations by forcing them to be deficit neutral and find dollar-for-dollar savings in the government for costly rules and regulations.

Supposedly would have saved taxpayers $1.5 trillion in the last 2.5 years alone though because of the broad waiver authority and non-judicial review the impact is expected to be limited and the statute would sunset over two years.

Opposition to the agreement came from both the left and right with progressives generally opposing environmental provisions (such as limits on NEPA reviews) while conservatives opposed what they deemed insufficient cuts to federal spending (returning discretionary funding to pre-COVID levels).