December 22, 2015

When signing the FAST Act into law, President Barack Obama commented, “Congress should pass a bill like the GROW AMERICA Act I’ve proposed in the past.” What he did not note, however, were the similarities between the FAST Act and the GROW AMERICA Act.

While this recent ETW article noted that the FAST Act’s funding levels and monetary priorities bore little resemblance to the GROW AMERICA proposal, when one looks at some of the policy language, there are much stronger similarities. Specifically, in terms of streamlining the environmental review process, the FAST Act uses a number of the GROW AMERICA provisions (albeit these sections do not address funding levels). In fact, the majority of GROW AMERICA language addressing project streamlining was incorporated into the FAST Act.

The following provides a comparison of the language within the each piece of legislation in regards to the environmental review process.

Analogous Sections

This does not mean that all the language in each respective section is the same, but rather, lays out where there is an overlap.

Environmental review process

Much of the language addressing the environmental review process and environmental impact statements for transportation projects from GROW AMERICA appears in the FAST Act. Here are the major similarities:

• Both require the Secretary to work towards “[developing] a coordinated and concurrent environmental review and permitting process for transportation projects when initiating an environmental impact statement under” the National Environmental Protection Act (NEPA). However, GROW AMERICA directs to Secretary work with a designated Steering Committee, whereas FAST simply includes “the heads of Federal agencies likely to have substantive review or approval responsibilities”
• Both have the same timeline of 90 days after passage of the bill, whereby the Secretary must develop a checklist “to help project sponsors identify potential natural, cultural, and historic resources in the area of a proposed project”
• Both require interagency collaboration among Federal agencies, in the form of annual sessions held at the appropriate jurisdictional level “to coordinate business plans and facilitate coordination of workload planning and workforce management” (with the FAST Act including clauses that explain the purpose of the collaboration and the focus of these sessions).
• Both allow a public entity that has received financial assistance from USDOT to distribute the monies to other Federal, State, and local entities involved with the environmental review and permitting process of one or more projects. Another requirement is an agreement that establishes projects and priorities of which this financial assistance would contribute.
• Both have the same language regarding deadlines for imposing financial penalty provisions during the environmental review process.
• Both promote transparency by requiring the Secretary to establish an online platform “to make publicly available the status and progress of projects requiring” NEPA compliance. This also includes the appropriate Federal agency, State and local agencies, and States with delegated authority (under NEPA) to provide information regarding project progress and status information.
• Both allow the use of errata sheets attached to final drafts of environmental impact statements, rather than entirely rewriting the draft, when addressing “comments that are minor and are confined to factual corrections or explanations of why the comments do not warrant additional Departmental response.” In addition, both require the lead agency to compile the final environmental impact statement and record of decision into a single document.

Primary differences between the two acts are the Congressional report requirements in FAST, while GROW AMERICA establishes a program to measure and report on progress towards aligning federal review (which did not make it into FAST).

Historic sites and wildlife refuges

The language within GROW AMERICA addressing historic sites (in the context of NEPA) and wildlife refuges appears in the FAST Act in almost identical form. For instance, both FAST and GROW AMERICA address the Secretary’s role, along with the relevant Federal agencies, in the case of “no feasible or prudent alternative to avoid a use of an historic site” in a transportation project. Both GROW AMERICA and FAST apply the same language to §138 of title 23, United States Code (“Preservation of Parklands”) and §303 of title 49, United States Code (“Policy on lands, wildlife and waterfowl refuges, and historic sites”).

In addition, both have the same language exempting certain railroad or rail transit lines from consideration as use of a historic site and exempting certain types of bridges from existing historic preservation legislation. FAST has also identical language from GROW AMERICA in clarifying references to section 4(f) requirements in the Department of Transportation Act and section 106 requirements in the National Historic Preservation Act of 1966.

Multimodal projects

FAST adopts similar language from GROW AMERICA, regarding §304 of title 49, United States Code (“Application of categorical exclusions for multimodal projects”). This includes modifying the definitions for “lead authority” and “multimodal projects.” Some differences include FAST not expanding the role of “Cooperating Authority” to a DOT operating administration or secretarial office that has expertise but are not the project lead (which is in GROW AMERICA). FAST also makes it clear that the “Lead Authority” has the responsibility of ensuring NEPA compliance, which does not appear in GROW AMERICA.