Short title

This Act may be cited as the

Create Expedited Reviews to Transform American Infrastructure Now Act

or the

CERTAIN Act

Authorization certainty

(a)

In general

Except as provided in this subsection or explicitly provided in any other provision of law, a Federal agency may not revoke, rescind, withdraw, terminate, suspend, amend, alter, or take any other action to interfere with an authorization unless— (1)the Federal agency is required to take such action by order of a court of competent jurisdiction; (2)such action is necessary to prevent specific, immediate, substantial, and proximate harm to life, property, or national security that was not discussed or considered, or could not have been reasonably anticipated, in the underlying environmental review or final agency action for the authorization; (3)the Federal agency has received a request from the holder of the authorization to take such action; or (4)the Federal agency determines, not earlier than 7 days after providing notice to the holder of the authorization in accordance with subsection (c), that— (A)the holder of the authorization has materially breached the terms of the authorization, or has otherwise violated applicable law; or (B)the authorization was obtained through fraud, intentional concealment, or material misrepresentation. (b)

Requirement

Each action described in subsection (a) shall be supported by clear and convincing evidence and limited in duration and scope by the agency to address the specific issue such action is intended to address. (c)

Notice

Before an agency takes an action described in subsection (a), the agency shall notify the holder of the authorization in writing of such action, including by providing a detailed explanation of the action (including a description of the duration and scope of the action), identifying the statutory authority relied upon for the action, and providing clear and convincing evidence supporting the action. (d)

Judicial review

(1)

In general

An action described in subsection (a) shall be subject to judicial review under chapter 7 of title 5, United States Code. (2)

Venue

A person seeking judicial review of an action described in subsection (a) may only obtain review of such action in— (A)the United States court of appeals for any circuit wherein the project for which the authorization was issued is located; or (B)the United States Court of Appeals for the District of Columbia Circuit. (3)

Petitions by Federal agencies

No Federal agency may petition a court for vacatur or voluntary remand of an authorization unless the holder of the authorization consents in writing to such a petition. (e)

Savings clause

Nothing in subsection (a) shall be construed to provide any Federal agency new, enhanced, or expanded authority, or to limit any authority explicitly provided in any other provision of law, concerning any authorization.

Timelines and process for application review

(a)

Notification requirements for applications

Unless a shorter timeline is provided under another provision of law, an agency that receives an application regarding an authorization shall— (1)publicly document the receipt of— (A)the application online by not later than— (i)14 days after the date on which the application is received; or (ii)in the case of an application pending as of the date of enactment of this section, 30 days after such date of enactment; and (B)any additional information requested under paragraph (3)(B); (2)immediately, upon receipt, notify the applicant in writing that the application was received, and identify the receiving official; and (3)not later than 30 days after notifying the applicant under paragraph (2) that the application was received, or, in the case of an application pending on the date of enactment of this section, not later than 45 days after such date of enactment, determine whether the application is complete pursuant to the requirements of applicable law and— (A)if the agency determines the application is complete, notify the applicant of such determination; or (B)if the agency determines the application is not complete, notify the applicant of such determination and request from the applicant, in writing, only so much additional information, which may include modifications to the application, that the agency needs to determine the application is complete pursuant to the requirements of applicable law, which such request shall— (i)be clear, comprehensive, and specific regarding the additional information required, or application modifications requested, from the applicant; (ii)establish a timeline for both the applicant’s submission of such information and the agency’s subsequent review and response; and (iii)be repeated until— (I)the agency determines the application is complete; or (II)the agency determines, under subsection (b)(1)(C), the applicant is not acting in good faith. (b)

Completeness of application

(1)

Deemed complete

(A)

Written attestation

If an agency has not notified an applicant that the agency determined the application is complete, or has not denied the application, by the date that is 60 days after the date on which the agency requested additional information under subsection (a)(3)(B), unless a shorter timeline is provided under applicable law, the application shall be deemed complete, unless the agency provides to the applicant a written attestation. Such written attestation shall— (i)state and provide evidence that the applicant failed to respond to a request for additional information under subsection (a)(3)(B); or (ii)identify why the additional information provided by the applicant was materially deficient, in a clear, comprehensive, and specific, manner. (B)

Second written attestation

If an agency has not notified an applicant that the agency determined the application is complete, or has not denied the application, by the date that 30 days after the agency provided to the applicant a written attestation under subparagraph (A), the application shall be deemed complete, unless the agency provided to the applicant a second written attestation in accordance with subparagraph (A). (C)

Determination on good faith

If the agency has not notified the applicant that the agency determined the application is complete, or has not denied the application, by the date that 30 days after the agency provided to the applicant a second written attestation under subparagraph (B), the application shall be deemed complete, unless the agency determines the applicant is not acting in good faith. If the agency determines the applicant is not acting in good faith (which shall be subject to judicial review in accordance with section 5(b)(1)) the application shall be deemed denied. (2)

Limitations

(A)

No revocation

A Federal agency may not revoke a determination that an application regarding an authorization is complete. (B)

Requests for new information

An agency may not request under subsection (a)(3)(B) any information in a request for additional information that was not included or referenced in the original request for additional information, unless the agency demonstrates that the new information is necessary to fulfill a statutory obligation with regard to the applicable authorization. (c)

Notice of application of the National Environmental Policy Act of 1969

Not later than 30 days after an agency notifies an applicant that the agency determined the application is complete under subsection (a)(3)(A), or 30 days after the date on which the application is deemed complete, unless a shorter deadline is specified under Federal law, the agency shall— (1)if the agency determines an environmental assessment or environmental impact statement is required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the application for an authorization— (A)notify the applicant in writing that such environmental assessment or environmental impact statement is required; and (B)not later than 30 days after notifying the applicant under subparagraph (A) issue a public notice of intent to prepare such environmental assessment or environmental impact statement; (2)if the agency determines that a categorical exclusion applies to the authorization, or that the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not require the preparation of an environmental assessment or environmental impact statement for the authorization, notify the applicant in writing of such determination; (3)if the agency lacks sufficient information to make a determination under paragraph (1) or (2), the agency shall, if it has not already, provide for such determination and, as applicable, provide for applicant notification or publishing of the notice of intent within the coordination plan established under section 6; or (4)if applicable, notify the applicant that the agency has determined that it is not required pursuant to the requirements of applicable law to complete any environmental reviews or issue any authorizations for the applicable project. (d)

Applicant notification of multiple applications

(1)

In general

Any person that submits an application to more than one Federal agency for an authorization for a project shall notify each such Federal agency of each application submitted to the other Federal agencies by not later than 7 days after submitting each such application. (2)

Rule of construction

Paragraph (1) shall not be construed as requiring applicants to file applications concurrently or simultaneously. (e)

Written determination of denial of application

An agency may not deny an application for an authorization for a project, or determine an applicant is not acting in good faith under subsection (b)(1), unless the agency provides, at the time of such denial or determination, to the applicant a written statement that— (1)describes the reason for the denial or determination; and (2)establishes that the denial or determination is supported by the record, authorized by the relevant statute.

Preventing unnecessary delays in environmental reviews

(a)

In general

The Council on Environmental Quality shall, in consultation with relevant Federal agencies— (1)not later than 180 days after the date of enactment of this section, issue guidance to Federal agencies and applicants for authorizations on the implementation of the provisions of this Act; and (2)take such actions as are necessary and within the statutory authority of the Council, including this Act, to facilitate timely and efficient completion of environmental reviews for authorizations. (b)

Mediation of disputes

The Chair of the Council on Environmental Quality (in consultation, as applicable, with the chief environmental review and permitting officers of applicable agencies, and an applicant for an authorization) shall, upon written request to the Council by the applicant, mediate any disputes regarding an environmental review for an authorization. (c)

Resolution of disputes

If a dispute remains unresolved by the date that is 30 days after the date on which the dispute was submitted to the Chair of the Council on Environmental Quality, the Chair shall— (1)facilitate a resolution of the dispute; and (2)if necessary (according to the discretion of the Chair) to resolve the dispute in a timely fashion, provide specific direction to the parties to the dispute on how to resolve the dispute by the end of the 60-day period beginning on the date of submission of the dispute to the Chair. Such direction shall be limited to matters of interagency coordination, scheduling, process management, and other analogous issues with regard to the environmental reviews for the authorization. In carrying out this section, the Chair may not predetermine the results or outcome of any environmental review for an authorization. (d)

No judicial review until final agency action

Any action taken by the Chair of the Council on Environmental Quality pursuant to subsection (c) shall not be considered a final agency action under chapter 7 of title 5, United States Code. (e)

Reporting and oversight

Not later than one year after the date of enactment of this Act, and not less frequently than once every two years thereafter, the Council on Environmental Quality shall submit to the Committees on Energy and Natural Resources and Environment and Public Works of the Senate and to the Committees on Energy and Commerce and Natural Resources of the House of Representatives a report describing— (1)the number and nature of disputes submitted under this section during the preceding year; (2)the time required to resolve such disputes; (3)any such dispute that is not resolved as of the date on which the report is submitted, including the reason why such dispute is not resolved; and (4)recommendations for additional administrative or legislative measures to further reduce unnecessary delays in environmental reviews for authorizations.

Judicial review of actions relating to authorizations

(a)

Revocation of authorizations and failure To meet deadlines

(1)

Judicial review

Any agency action with respect to an authorization described in section 2(a), and any action or inaction by an agency that results in a failure to meet a deadline, timeline, or milestone under this Act (including any such deadline, timeline, or milestone outlined in a coordination plan or performance schedule) or other applicable laws, may be considered, solely for the purposes of this section, a final agency action and subject to judicial review under chapter 7 of title 5, United States Code. (2)

Venue

A person seeking judicial review of any agency action or inaction described in paragraph (1) shall obtain such review in— (A) the United States Court of Appeals for any circuit in which the applicable project is, or will be, located; or (B) the United States Court of Appeals for the District of Columbia Circuit. (3)

Presumption of unreasonable delay

If an agency fails to meet a deadline, timeline, or milestone under this Act (including any such deadline, timeline, or milestone outlined in a coordination plan or performance schedule) or other applicable laws, such failure shall create a rebuttable presumption that the agency action was unlawfully withheld or unreasonably delayed for purposes of section 706(1) of title 5, United States Code, or any other applicable provision of law. (4)

Deadline for decision

For any challenge to an agency action or inaction described paragraph (1), the reviewing court shall issue a decision for such challenge— (A) as expeditiously as practicable; and (B) not later than the date that is 90 days after the date on which the challenge is filed. (5)

Deadlines for required action

If a court of competent jurisdiction finds that an agency action described in paragraph (1) was unreasonably delayed, or that agency action or inaction described in paragraph (1) caused an unreasonable delay in a required action, the court shall— (A) issue an order that compels the appropriate agency or agencies to take corrective action; (B) specify the dates by which each discrete action of the agency shall be completed; and (C) set a specific deadline as determined appropriate by the court for the agency to complete the corrective action. (b)

Denial of applications for authorizations

(1)

Judicial review

(A)

In general

Except as provided in subparagraph (B), the denial of an application for an authorization for a project, and a determination by an agency under section 3(b)(1)(C) that an applicant is not acting in good faith, may be considered a final agency action under chapter 7 of title 5, United States Code. (B)

Inapplicability to certain FERC orders

With respect to an order issued by the Federal Energy Regulatory Commission under the Federal Power Act (16 U.S.C. 791a et seq.) or the Natural Gas Act (15 U.S.C. 717 et seq.), the final rehearing order pursuant to section 313 of the Federal Power Act (16 U.S.C. 825l) or section 19 of the Natural Gas Act (15 U.S.C. 717r) shall be considered the final agency action with respect to such an order for purposes of chapter 7 of title 5, United States Code. (2)

Venue

A person seeking judicial review of the denial of an application for an authorization for a project, or a determination by an agency under section 3(b)(1)(C) that an applicant is not acting in good faith, shall obtain such review— (A)in the United States Court of Appeals for any circuit in which the project is, or will be, located; or (B)the United States Court of Appeals for the District of Columbia Circuit. (3)

Deadline for decision

For any challenge to a denial of an application for an authorization for a project, or to a determination by an agency that an applicant is not acting in good faith under section 3(b)(1)(C), the reviewing court shall issue a decision on such challenge— (A)as expeditiously as practicable; and (B)not later than the date that is 90 days after the date on which the challenge is filed. (c)

Savings clause

Nothing in this section shall be construed to impact the ability of an applicant and an agency to resolve the denial of an application for an authorization informally or administratively.

Process coordination

(a)

Designation of lead agency; authority and responsibility of lead agency

If there is only one Federal agency with jurisdiction by law or special expertise over a complex authorization for a project, that Federal agency shall be the lead agency for purposes of this section. If there are two or more Federal agencies with jurisdiction by law or special expertise over a complex authorization for a project, such agencies shall, not later than 30 days after the date on which the application for the complex authorization is determined or deemed complete, determine (if such agencies have not done so already) which agency shall be designated as the lead agency based on the considerations described in subparagraph (A) of section 107(a)(1) of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a(a)(1)). The lead agency shall have the authority and responsibility, consistent with applicable law— (1)to take such actions as are necessary and proper, within the statutory authority of the lead agency, and in coordination with other participating agencies, to facilitate the expeditious resolution of the environmental review the complex authorization; (2)to prepare or ensure, in coordination and consultation with participating agencies, that such environmental review is completed and a final agency action document is issued in accordance with this Act and applicable Federal law; (3)to ensure coordination and consultation with participating agencies; and (4)to consider and respond to comments received from participating agencies, and coordinate public comment on the environmental review. (b)

Participating agencies

(1)

Identification and invitation

Not later than 60 days after the date on which an application for a complex authorization is determined or deemed complete, unless a shorter deadline is specified under Federal law, the lead agency shall— (A)identify any other Federal or non-Federal agencies that have jurisdiction by law or special expertise over the applicable project; and (B)invite such agencies, in writing, to become participating agencies in the environmental review for the project. Each such agency shall respond to the invitation not later than 30 days after receiving the invitation, unless a shorter deadline is specified under Federal law. (2)

Response to invitation by Federal agencies

Any Federal agency that is invited by the lead agency to become a participating agency under paragraph (1)(B) shall respond, in writing, to the lead agency by the deadline under paragraph (1)(B) to indicate whether the agency agrees to become a participating agency. If a Federal agency does not provide a response, in writing, to the lead agency by such deadline, the applicant may submit to the Council a request under section 4(b). (3)

Response to invitation by non-Federal agencies

(A)

In general

Any non-Federal agency that is invited by the lead agency to become a participating agency under paragraph (1)(B) shall respond, in writing, to the lead agency by the deadline under paragraph (1)(B) to indicate whether the agency agrees to become a participating agency. (B)

Exception for Tribal Governments

Notwithstanding section 8(4), the deadline in subparagraph (A) shall not apply to the governing body of any Indian or Alaska Native Tribe, band, nation, pueblo, village, community, component band, or component reservation, individually recognized (including parenthetically) in the list published most recently pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5131). (c)

Requirements for environmental reviews

When carrying out an environmental review, each lead agency and participating agency shall— (1)carry out the obligations of such agency under other applicable laws concurrently, and in conjunction, with other required reviews for the project, pursuant to the requirements of applicable law, including, if applicable, under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and (2)formulate and implement administrative, policy, and procedural mechanisms to enable the respective agency to comply with this Act, and to ensure completion of the environmental review in a timely, coordinated, and environmentally responsible manner. (d)

Single final agency action document required

(1)

In general

Notwithstanding any other provision of law, a Federal agency with jurisdiction by law or special expertise over a complex authorization for a project shall, in collaboration with each other Federal agency with jurisdiction by law or special expertise over another complex authorization for the same project, prepare a single document that contains the final agency action by each such Federal agency for the respective complex authorization for the project. (2)

Performance schedule

A final agency action document prepared under paragraph (1) may, if the lead agency determines doing so would facilitate expeditious completion of any remaining environmental reviews for authorizations for the project, contain a performance schedule for the completion of any remaining environmental reviews for authorizations for the project, which shall not exceed one year from the publication of the final agency action document. (3)

Severability and independence

Each final agency action for a complex authorization contained within a document prepared under paragraph (1) shall remain legally independent and severable. A determination by a court of competent jurisdiction that one final agency action is invalid or deficient shall not, by itself, invalidate or vacate any other final agency action included in such document, except to the extent specifically required by law. (4)

Limitation

Nothing in this subsection shall be construed to require that all participating agencies complete their respective authorizations before any individual agency may issue its final agency action within its statutory authority. (5)

Judicial review

In any judicial review of a final agency action contained within a final agency action document prepared under this subsection, relief shall be limited to the specific authorization challenged, unless a court determines that other authorizations are legally dependent upon the challenged action as a matter of law. (e)

Coordination plan

(1)

Establishment and publication

Not later than 90 days after inviting agencies to become participating agencies under subsection (b)(1), the lead agency, in consultation with the participating agencies, shall, if it has not already done so for the project, convene the participating agencies to coordinate on establishing and publishing a concise plan for coordinating public and agency participation in, completion of, and comment on the environmental review, as applicable. The coordination plan may be incorporated into a memorandum of understanding. (2)

Inclusions in plan

The lead agency shall, after consultation with each participating agency for the project and with the applicant, establish as part of the coordination plan under paragraph (1)— (A)a list of the authorizations required for the project, including a determination as to whether each required authorization is routine or complex; and (B)a schedule for completion of the environmental reviews for the authorization for the project, which shall— (i)be consistent with any other relevant time periods established under Federal law, as well as the process requirements, timelines, and deadlines under this Act; (ii)ensure that a final agency action document is issued in accordance with the deadlines under subsection (f); and (iii)include intermediate and final milestones for action by each participating agency on any environmental review for an authorization required for the project. To the maximum extent practicable, the schedule and associated milestones shall facilitate the ability of agencies to carry out environmental reviews concurrently. (3)

Factors for consideration

In establishing a schedule under paragraph (2)(B), the lead agency shall identify and consider factors such as— (A)the responsibilities of the lead agency and participating agencies under applicable laws; (B)resources available to participating agencies, including staffing capacity; (C)overall size and complexity of the project, including the ability of an agency to, while complying with the requirements of applicable law— (i)analyze multiple phases of the project’s development activity, which may, according to the discretion of the lead agency in consultation with participating agencies, include all phases anticipated; and (ii)for future environmental reviews for the project, to tier off of previous environmental reviews; (D)the overall time required by an agency to conduct an environmental review and make decisions under applicable Federal law relating to a project; (E)the sensitivity of the natural and historic resources that could be affected by the project; and (F)the ability of communities and stakeholders to participate, as applicable, in the environmental review. (4)

Modification of project schedule

(A)

Modification of schedule

Except as provided in subparagraphs (B) and (C), the lead agency may lengthen or shorten a schedule established under paragraph (2)(B) for good cause, with the consent of the applicant. The agency shall lengthen or shorten a schedule under this subparagraph by issuing a revised schedule by not later than 30 days after the applicant provides consent. (B)

Conflicts

The lead agency may not lengthen a schedule if doing so would conflict with timelines or deadlines under other applicable laws, unless the applicant consents to such an extension. (C)

Necessary analyses and statutory obligations

The lead agency may not shorten a schedule if doing so would, in the opinion of the lead agency or an applicable participating agency, impair the ability of the lead agency or applicable participating agency to conduct necessary analyses or otherwise carry out relevant statutory obligations of the agency for the project. (D)

Waiver of right to judicial review

An applicant that consents to an extended or shortened schedule may not challenge the failure of an agency to meet any deadlines in the previous schedule that were changed in the updated schedule. (5)

Role of participating agencies

The lead agency shall consult with and maintain communication with applicable participating agencies throughout the environmental review regarding— (A)setting and amending timelines, deadlines, and milestones for environmental reviews; and (B)collecting, analyzing, and incorporating information for environmental reviews, and otherwise carrying out tasks necessary for the timely completion of environmental reviews, pursuant to this section. (6)

Savings clause

Nothing in this subsection shall be construed to reduce or increase any time period provided for public comment on an environmental review for an authorization under Federal law, including any regulation. (7)

Exemption from NEPA

The establishment of a coordination plan, including a project schedule, required by this subsection shall not be considered a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (f)

Deadlines for environmental reviews

(1)

Transparency

With respect to any project that requires an authorization for which an environmental document is required by the National Environmental Policy Act of 1969— (A)the Federal agency with jurisdiction by law or special expertise over such authorization, if it requires the preparation of an environmental impact statement, shall make available to the public a draft version of the environmental impact statement for a period of at least 30 days before publishing a final version; and (B)the Federal agency with jurisdiction by law or special expertise over such authorization shall publish the finding of no significant impact, final environmental assessment, or final environmental impact statement not later than 30 days after finalizing such finding of no significant impact, environmental assessment, or environmental impact statement. (2)

Complex authorizations

Unless a shorter deadline is specified under Federal law, the Federal agency with jurisdiction by law or special expertise over a complex authorization shall publicly issue a final agency action on the application for the complex authorization by not later than 90 days after the earliest of the following: (A)The date on which the Federal agency applies a categorical exclusion with respect to the complex authorization. (B)The date on which the Federal agency publishes a finding of no significant impact with respect to the complex authorization. (C)The date on which the Federal agency publishes a final environmental impact statement with respect to the complex authorization. (D)If the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not apply with respect to the complex authorization, the first date on which a lead agency or a participating agency completes an environmental review with respect to another complex authorization for the same project. (3)

Routine authorizations

Not later than 30 days after a Federal agency with jurisdiction by law or special expertise over a routine authorization receives a complete application for a routine authorization, unless a shorter deadline is specified under Federal law, such Federal agency shall issue a decision on the application for the routine authorization. If the Federal agency with jurisdiction by law or special expertise over a routine authorization does not issue a decision by the deadline described in the preceding sentence, the application for the routine authorization shall be deemed approved. (4)

Completion of environmental reviews and issuance of final agency actions

A Federal agency shall complete the environmental review for a complex authorization and issue a final agency action on the application for the complex authorization by not later than— (A)if the agency determines that a categorical exclusion applies to the complex authorization, or that the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) does not require the preparation of an environmental assessment or environmental impact statement for the complex authorization, 6 months after the date on which the application for the complex authorization is determined to be or deemed complete; (B)if the agency determines an environmental assessment is required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the application for a complex authorization, one year after the date on which the agency determines such environmental assessment is required; or (C)if the agency determines an environmental impact statement is required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) with respect to the application for a complex authorization, two years after the date on which the agency determines such environmental impact statement is required. (g)

Accountability

In any case in which the lead agency or participating agencies have not met the deadlines under subsection (f), adhered to the schedule established as part of the coordination plan under subsection (e), or adhered to a performance schedule included in the single final agency action document under subsection (d), the lead agency and applicable participating agencies, immediately upon missing the deadline or deviating from the schedule, shall— (1)provide the public, the applicant, the lead agency, participating agencies, the Council on Environmental Quality, and the heads of the lead and participating agencies an initial notice of the failure of the applicable agency to adhere to the schedule, issue an authorization, complete an applicable environmental review, or meet another required milestone; (2)not later than every 30 days after providing the initial notice under paragraph (1), provide an additional notice that describes— (A)the agency decisions and environmental reviews that remain outstanding as of the date of the additional notice; and (B)an updated schedule, developed by the lead agency in consultation with each participating agency, that shall not exceed six months from the date of the initial notice; and (3)provide, in writing, the applicant with an opportunity for administrative review of the failure of the applicable agency to adhere to the schedule, issue an authorization, complete an applicable environmental review, or other additional required milestone, to be— (A)initiated not later than 30 days after such failure; and (B)completed not later than 90 days after such failure by career agency Senior Executive Service officials from the lead agency and applicable participating agencies, unless such review is waived by the applicant.

Federal permitting capacity

(a)

Assessment

Not later than 180 days after the date of enactment of this section, and every 5 years thereafter, the head of each agency listed under section 41002(b)(2)(B) of the FAST Act (42 U.S.C. 4370m–1(b)(2)(B)) shall submit to the Director of the Office of Personnel Management, the Committee on Natural Resources and the Committee on Energy and Commerce of the House of Representatives, and the Committee on Environment and Public Works and the Committee on Energy and Natural Resources of the Senate a report on the personnel capacity of the respective agency, which shall include— (1) the capacity of the agency (broken down by State and region) to engage with communities affected by projects when processing applications for authorizations for projects, including environmental reviews; and (2) a finding by the agency whether there are a sufficient number of employees of the agency (broken down by field office) to— (A) process applications for authorizations for projects, including environmental reviews, in a timely manner; and (B) comply with sections 107(g) and 112(a)(4) of the National Environmental Policy Act of 1969 (42 U.S.C. 4336a(g) and 4336f(a)(4)). (b)

Implementation plan

Upon receipt of a report submitted under subsection (a), if an agency finds under subsection (a)(2) that there are an insufficient number of employees of the agency to carry out the activities described in subparagraphs (A) and (B) of subsection (a)(2), the Director of the Office of Personnel Management shall (not later than 90 days after receipt of the report submitted under subsection (a)) publish, develop, and initiate the execution of a plan to increase the personnel capacity of the agency to ensure the agency has a sufficient number of employees to carry out such activities. (c)

Direct hire authority

(1)

In general

Notwithstanding section 3304 of title 5, United States Code, and without regard to the provisions of sections 3309 through 3318 of such title 5, if the head of an agency described in subsection (a) finds in the report under subsection (a)(2) that there are an insufficient number of employees to carry out the activities described in subparagraphs (A) and (B) of subsection (a)(2), the head of the agency may, subject to paragraphs (2) and (3), recruit and appoint highly qualified individuals into the competitive service. (2)

Limitation

The recruiting and appointment of highly qualified individuals under paragraph (1) shall be consistent with the merit principles of section 2301 of title 5, United States Code, and the agency shall comply with the public notice requirements of section 3327 of such title 5. (3)

Termination

The authority to recruit and appoint highly qualified individuals under paragraph (1) shall terminate on the earlier of— (A)the date that is 5 years after the submission of the report including the applicable finding; and (B)the date on which the agency head determines that there is no longer an insufficient number of employees to carry out the activities described in subparagraphs (A) and (B) of subsection (a)(2). (d)

Authorization of appropriations

In addition to amounts otherwise available, there is authorized to be appropriated such sums as is necessary to carry out the provisions of this subsection.

Definitions

In this Act: (1)

Authorization

The term authorization— (A)means any right-of-way, license, permit, approval, finding, determination, certification, consent, or other administrative decision required under Federal law (including regulations) to design, site, construct, reconstruct, continue, or commence operations for a project; (B)includes any decision, record, or other final agency action that— (i)supports such right-of-way, license, permit, approval, finding, determination, certification, consent, or other administrative decision; or (ii)is required to ensure compliance with applicable environmental laws; and (C)does not include any right-of-way, license, permit, approval, finding, determination, or other administrative decision required under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), including any license issued pursuant to the technology-inclusive regulatory framework established under section 103 of the Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2133 note). (2)

Complex authorization

The term complex authorization includes, but is not limited to, any authorization for a project that— (A)requires the preparation of an environmental assessment, a finding of no significant impact, or an environmental impact statement, including any supplement thereto or any similar document prepared pursuant to court order; (B)requires formal consultation under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) or results in the issuance of a biological opinion; (C)requires consultation under section 306108 of title 54, United States Code (commonly referred to as the National Historic Preservation Act); (D)grants a new or expanded right-of-way, easement, lease, or comparable real-property interest; (E)requires an individual permit under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) or an individual water quality certification under section 401 of that Act (33 U.S.C. 1341); or (F)requires a preconstruction permit under section 165 of the Clean Air Act (42 U.S.C. 7475). (3)

Environmental review

The term environmental review means— (A)the process for applying or preparing an environmental assessment, environmental impact statement, categorical exclusion, or other document required by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for an authorization for a project; and (B)the process and schedule for authorizing a project under any Federal law other than the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (4)

Non-Federal agency

The term non-Federal agency means a State, Tribal or local government, or any subdivision thereof (including counties, boroughs, and parishes). (5)

Participating agency

The term participating agency means, with respect to a project, any agency that agrees to be a participating agency under section 6(b). (6)

Routine authorization

The term routine authorization— (A)means any authorization that is not a complex authorization; and (B)includes, but is not limited to, preconstruction surveys, temporary use permits, access road authorizations, and other similar authorizations necessary to complete environmental reviews and associated authorizations.