Steve Fiscor Publisher & Editor-in-Chief

The U.S. federal government is making more changes to clarify environmental regulations and the permitting process. The White House Council on Environmental Quality (CEQ) issued a proposed rule to modernize its National Environmental Policy Act (NEPA) regulations (See News, p. 10). The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) recently released a pre-publication version of their final rule defining the scope of waters federally regulated as “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The hope is that the replacement rule will offer clear delineations between state and federal waterways.

The Federal Permitting Improvement Steering Council (FPISC) voted to add mining to the list of covered sectors eligible for the expedited permitting process available under section 41 of the Fixing America’s Surface Transportation Act (FAST-41). Hold it. What? Those are two acronyms that are new to the mining business.

FAST-41 included a statutory bill passed by Congress that created the FPISC, which is based at the White House. Alex Herrgott, executive director for FPISC, spoke at a luncheon during the annual American Exploration & Mining Association meeting during December. Like most E&MJ readers, no one in the room had heard of the FPISC. He explained that the council is an independent entity that sits outside and above the other agencies as a coordinating element. “It has no jurisdiction over organic statues,” he said. “What we do is bring all the federal elements together to adjudicate disputes.”

In a world where a U.S. project is permitted in a reasonable amount of time is the exception and not the rule, Herrgott is working to change that mindset. “We are developing an administrative process that basically promotes quite complicated and crazy ideas, like predictability, transparency, a definite beginning and a definitive end point to the process,” Herrgott said. “No decision deserts. No one from a federal agency is going on vacation leaving a document unsigned for no particular reason.”

Herrgott’s council members are the deputy secretaries of all the federal agencies. When two agencies are in a dispute, he has the statutory authority to escalate it to the Office of Management and Budget. “It’s the strongest end game that exists, and we haven’t had to exercise it yet,” Herrgott said.

If a project has a value of $200 million or more, developers submit it to the FPISC. Within 14 days, the council has to decide whether the project qualifies as a covered project. Once a project qualifies, it’s added to the PFISC dashboard (www.permits.performance.gov), where its progress can be tracked. “Within 60 days, the council gets all of the stakeholders in one room and they create a coordinated timeline with milestones that cannot be changed arbitrarily,” Herrgott said. “Those that aren’t involved at the beginning of the process can’t file a lawsuit after NEPA issues a Record of Decision. The whole idea is to bring all relevant stakeholders to the front end of the process so we can figure out the rules and respond and identify problems.”

Mining companies should not need to hire lawyers and consultants to navigate the maze that is Washington, D.C., and now people on the inside are trying to help.