Leslie Watson wondered about the regulation that revised Fast-41 to include the mining industry.
She said “In reviewing Fast 41 requirements, it in not quite clear to me on how the Jan 8 2021 revised rule will be implemented and if a mining project (such as Stibnite Gold Project) are included under Fast 41, what changes for agency staff and applicants?”
Fast-41 Rule; revised to include mining industry
The origin of Fixing America’s Surface Transportation (FAST) Act was to “improve the timeliness, predictability, and transparency of the Federal environmental review and authorization process for covered infrastructure projects.” Eligible projects under the statute are those subject to NEPA, over a $200M investment and are not included under other abbreviated authorization or environmental review processes. The Jan 8 2021 rule includes the mining industry projects as defined by the permitting council and consistent with E.O. 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” and E.O. 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals.”
Guidance for the Coordinated Project Plan from the permitting council (May 26, 2020 https://www.permits.performance.gov/fpisc-content/fast-41-process#whatiscpp) include the following:
The Coordinated Project Plan (CPP) is a tailored roadmap to the permitting process, developed by Federal agencies in partnership with the project sponsor. In developing the CPP, agencies collaborate to establish:
• Roles and responsibilities for all entities with permitting responsibilities
• A permitting schedule with interim and final milestones, with potential focus areas for additional interagency coordination noted
• Potential avoidance, minimization, and mitigation strategies
• Plans and a schedule for public and tribal outreach and coordination
She asks “Would mining project proposed for inclusion under the Fast 41 program develop a CCP to submit to the lead federal agency for the project along with a Plan of Operations?”
It sounds to me from a brief review that the developer would choose to opt in (here are the pros and cons according to one law firm). Then the Lead Agency would initiate the CPP. Possibly the FS would be the lead agency; I’m not clear when BLM is the lead on minerals.
Here’s a summary from DOT about FAST41.
It looks like while BLM has quite a few projects enrolled in Fast41, the FS only has one project (one was cancelled), the Kake to Petersburg Tranmission Line.
Here’s a roadmap of the coordination process. The Forest Service has its own website about FAST41 here.
This might sound pretty specialized, but with the Biden Administration potentially encouraging many new wind and solar installations plus the necessary transmission lines on federal lands, we may all become more familiar with FAST41 and using it for projects.
10 thoughts on “FAST 41 and Adding Mining Projects”
Interesting question from Leslie. Not sure this will help, but here are some tidbits from my experience in this area.
I’m fairly sure FAST-41 and the related Coordinated Project Plan (CPP) are about coordinating and, thus, gaining efficiencies that expedite the planning side of a covered project, in this case proposed mining projects. Alternatively, a Plan of Operations generally is about implementing a decision, like the mining authorized under a decision made at the end of FAST-41 CPP.
I’m not entirely sure this language hasn’t morphed somehow in the past few years, but when I worked on these issues in 2014-16, including as an early member of what is now known as the Federal Permitting Steering Council before it became only Deputy-Secretary level, FAST-41 was about creating efficiencies through coordination of NEPA and other related clearance processes. I was involved to help discussions related to coordination of public participation and collaboration efforts, including with Tribes in ways that complement government-to-government Tribal Consultation.
As to when BLM would have the lead, I would think that goes to Split-Estate situations where USFS manages/administers the surface “estate” and the subsurface estate is managed separately, often by BLM but sometimes other federal agencies, depending on the mineral involved and whether the mining method will be surface or subsurface.
Thanks Peter – that is helpful information. Good point about split estate situations, but also when there are multiple land jurisdictions involved. I would be interested to know if there are suggestions on the CPP beyond what is included in the rule.
The other question I have on mining projects included in the Fast-41 program is how changes to the project description could affect the timeline. For example, if a proposed project had planned on processing ore on-site during the DEIS, but due to market changes or ownership changes, would now process ore at an off-site facility between DEIS and FEIS, this could reset the timeline for decisions.
Leslie, this sounds like free legal advice from environmental review writing practitioners..so you know what that’s worth! Having been litigated when a project went from all tractor to partially helicopter logging (less environmental impact), I’d guess that you’d have to redo the DEIS and send it out for public comment again, because the impacts would be different.
It gets frustrating with minerals projects because market conditions change faster than Feds can complete documents. We had a forest plan that needed to change because of a new shale play area. By the time the forest fixed everything and redid it, industry decided they didn’t want it after all. Or the most changeable of all environmental reviews I’ve been involved with have been about coal.. prices.. power plants shutting down or not..
Anyway, I’d call the person whose name is on the FS website to see if there is more direction, he was very helpful when I called him Friday.
“By the time the forest fixed everything and redid it, industry decided they didn’t want it after all.” A good reason for a SLOW process. Long-term land management shouldn’t be based on short-term profit opportunities. (And maybe industry should share the blame/cost for all of the unnecessary federal work that went into that.)
Thank you for the thoughtful response and the suggestion on whom to contact at the FS. Just for clarity, the situation described was not searching for free legal advice, but trying to add context to the discussion. My thinking is that perhaps a supplemental EIS would be a less risky option, but then that would mean the project was perhaps not well enough defined to fit within the Fast-41 guidelines.
Mineral projects are maddening in terms of changes due to market.
Sorry, I didn’t think you were (searching for free legal advice). I was trying to be appropriately humble about any help I could provide. An SEIS sounds fine to me FWIW-I didn’t think of that. It would be interesting to talk to proponents who had used FAST 41 and how much they think developing the coordination plan helped compared to similar projects.
Sharon – apology not necessary – I should have written more clearly. I greatly appreciate and respect your knowledge. This is one where I am not sure much changes with the addition of mining industry to Fast-41. I’ll delve into the information Peter Williams posted as well.
Hi Leslie, if I’m understanding your questions here, there may be 2-3 separate ones:
* Suggestions re CPP–here’s a link to a very short “FAST-41 Quick Guide for Practitioners”
–Note that the Permitting Dashboard doesn’t seem to have a great navigation system for finding the resources you need.
— Overview of CPP: https://www.permits.performance.gov/fpisc-content/fast-41-process
* CPP v Project Design: CPP seems to be about completing clearance/permitting processes, although I’d argue (and did argue) a better approach might be to coordinate on both the project design and clearance/permitting work, much as intended by NEPA and related CEQ Regulations.
–I mention this because, as in your example, changing the proposed project in response to market conditions seems to fall into “project design” with NEPA Alternatives for meeting a single stated “purpose and need.”
–I think “project” is used in two different ways here: “Coordinated Project Plan” used project to mean “securing permitting”, whereas NEPA practitioners often use project to mean “proposed action and alternatives for meeting a stated purpose and need”.
* Suggestions on CPP’s: There don’t seem to be many between coarse-scale “Quick Guides” and fine-scale, granular examples of actual CPP’s. If there are any, those don’t seem to be on the “Dashboard”.
Thanks Peter for the links to the resources. There were at least 3 questions from me which I should have articulated more clearly.
In terms of coordinating project design and clearance/permitting work that does seem to be what NEPA and CEQ Regulations are designed to do. Thank you for the links to references.