Constructor - January/February 2018 - 47

The best hope to accelerate permit times involves both the administration and
interested private sector groups adopting strategies of what might be called
"smart permitting."
First, everyone involved should recognize that the main
delays with federal permitting usually stem from three laws: the
National Environmental Protection Act, the Clean Water Act and the
Endangered Species Act. All require compliance with regulations
created in keeping with the Administrative Procedures Act, which
establishes rules on public notice and regulation justification.
Changing the rules for any of these three laws is time-consuming and
certain to spark extensive litigation. The administration and Congress
are seeing this firsthand with the ongoing WOTUS repeal. Another
option involves changing the actual laws, but this appears unlikely.
The best hope to accelerate permit times involves both the
administration and interested private sector groups adopting strategies of what might be called "smart permitting."
For example, federal officials should increasingly adopt a process
that unifies a project's permit applications under a single "one stop
shop" overseen by a designated official. That official becomes the
arbiter among agencies and ensures a permit application does not
bog down in interagency delays.
This model has worked effectively in Europe for years. A version
of it also helped accelerate New Orleans' rebuilding after Katrina.
In that instance, the Corps of Engineers had the lead role and was
able to coordinate action with all federal agencies to shorten the
approval process.
Second, those pushing infrastructure projects - particularly
when the project involves private sector funding and partnerships - should take better advantage of what current rules allow
in permit applications. The following example involving federal
mitigation banking, while somewhat complex, has tripped up many
worthwhile projects, often unnecessarily.
Federal law and Corps of Engineer policy have long encouraged
a "mitigation banking" system as a better, more efficient option during the review process than the traditional "permitee-responsible"
process. Basically, this means that when permit applicants remain
responsible for the required mitigation, they must construct, operate
and maintain the mitigation in perpetuity, with federal approvals
and continuous oversight.
But if the federal permitting agency allows the purchase of credits
from a mitigation bank (an area set aside for the appropriate type
and amount of mitigation), then the responsibility in perpetuity
falls to the bank owner who has financial assurances in place to
ensure the success of the bank. This requires much less time, work
and resources by both the applicant and the federal government.
A 2015 Corps' study concluded that a mitigation banking system can reduce permit processing times by up to 50 percent.
Unfortunately, the full benefits of mitigation banking are being lost
due to regulatory confusion. A 2008 federal regulation requires the
Corps of Engineers to "reserve a significant share" of credits until
after a project's builder has met promised ecological standards.
However, a different part of the same rule states that what constitutes a significant share is "at the discretion of the [Corps of
Engineers] district engineer... and may vary depending on the...
project and the risks and uncertainty...."
@Constr uctor Ma g

For years, this vague wording has produced confusion, legal
uncertainty and delays in federal reviews. This angers builders,
construction workers, unions and everyday consumers who lose
the benefits of new projects. But equally important, it frustrates
Corps professional staff and commanders.
Those seeking environmental permit approvals from the Army
Corps of Engineers should offer an option: suggest that the Corps
could agree that a ''significant share" means a specific defined
amount based on the project's unique needs and never more
than 20 percent.
Third, project sponsors in a public-private partnership must
be smart about post-permitting issues that can bring approved
projects to a rapid halt. Specifically, that means anticipating
roadblocks and taking action before these cause delays.
One example involves a situation in the Northeast two years
ago. After extensive evaluation, the U.S. Fish and Wildlife Service
(FW) listed the northern long-eared bat as "threatened" under
the Endangered Species Act. That triggered immediate delays
on logging, road construction and energy operations in the area,
which included the Marcellus Shale area.
But one large infrastructure operation saw this coming and
had conducted its own impact study on the bat population. It
quickly submitted the report to FWS and as a result, the company
avoided at least six months of construction delays.
In 2017, Corps of Engineers Commander Gen. Todd
Semonite testified before Congress on the importance of PPPs
for the country's water resource infrastructure. "The Corps is
exploring alternative financing and funding options, including
public-private partnerships ... through an assessment of private
policy requirements and application of project-specific experience," Semonite told Congress.
He added that the Corps is seeking to demonstrate how public
and private sector collaboration can improve the Corps' ability to
modernize America's water infrastructure needs.
The direction that Gen. Semonite laid out for Congress on PPPs
and waterways enjoys strong support for other types of infrastructure - for example, roadways and bridges. This can translate
into a better climate for permit approvals, but only if partnerships
approach the task of permit approvals with a complete knowledge
of what the rules allow and what they don't.
No one should expect the Corps of Engineers to begin employing a "rubber stamp" approach to permitting. To be clear, neither
the law nor federal rules will allow this. However, through a smart
approach to permitting strategy, PPPs and the private sector in
general have a much larger window now to get things done. ◆
Gen. (ret) Bob Flowers was commanding general of the Army Corps of Engineers
and Gen. (ret) Charles Williams was commander of the Corps' North Atlantic
Division. Gen. Williams was also chief operating officer of the Dulles Toll Road
partnership which built the nation's first private toll road in more than 150 years,
completing it six months ahead of schedule. Both are senior advisors at Dawson &
Associates in Washington, D.C., specializing in federal environmental permitting.

J A N U A R Y / F E B R U A R Y 2 0 1 8 | www.constructormagazine.com 47


http://www.constructormagazine.com

Table of Contents for the Digital Edition of Constructor - January/February 2018

Editor’s Note
President’s Message
CEO’s Letter
Come for the Puppies, Stay for the Mission
Simonson Says
2018 Regulatory Update: AGC Leaves No Stone Unturned
De-Constructing Delays and Disruptions: Task Force Tackles an Ever-Increasing Problem
Workforce Development Is Priority One
Going Up
Technology Toolbox
Improving Safety With Building Information Modeling Technology
Book Shelf
The 99th Annual AGC Convention: Celebrating 100 Years of Construction
Member and Chapter News
Overcoming Permit Delays
2018 Service & Supply Buyers’ Guide – a Special Advertising Section
Products & Services Marketplace
Index to Advertisers
Constructor - January/February 2018 - Intro
Constructor - January/February 2018 - cover1
Constructor - January/February 2018 - cover2
Constructor - January/February 2018 - 3
Constructor - January/February 2018 - 4
Constructor - January/February 2018 - 5
Constructor - January/February 2018 - 6
Constructor - January/February 2018 - Editor’s Note
Constructor - January/February 2018 - 8
Constructor - January/February 2018 - President’s Message
Constructor - January/February 2018 - 10
Constructor - January/February 2018 - CEO’s Letter
Constructor - January/February 2018 - Come for the Puppies, Stay for the Mission
Constructor - January/February 2018 - 13
Constructor - January/February 2018 - 14
Constructor - January/February 2018 - 15
Constructor - January/February 2018 - 16
Constructor - January/February 2018 - Simonson Says
Constructor - January/February 2018 - 18
Constructor - January/February 2018 - 2018 Regulatory Update: AGC Leaves No Stone Unturned
Constructor - January/February 2018 - 20
Constructor - January/February 2018 - 21
Constructor - January/February 2018 - 22
Constructor - January/February 2018 - 23
Constructor - January/February 2018 - 24
Constructor - January/February 2018 - De-Constructing Delays and Disruptions: Task Force Tackles an Ever-Increasing Problem
Constructor - January/February 2018 - 26
Constructor - January/February 2018 - Workforce Development Is Priority One
Constructor - January/February 2018 - Going Up
Constructor - January/February 2018 - 29
Constructor - January/February 2018 - 30
Constructor - January/February 2018 - 31
Constructor - January/February 2018 - 32
Constructor - January/February 2018 - 33
Constructor - January/February 2018 - 34
Constructor - January/February 2018 - Technology Toolbox
Constructor - January/February 2018 - Improving Safety With Building Information Modeling Technology
Constructor - January/February 2018 - 37
Constructor - January/February 2018 - 38
Constructor - January/February 2018 - 39
Constructor - January/February 2018 - 40
Constructor - January/February 2018 - Book Shelf
Constructor - January/February 2018 - 42
Constructor - January/February 2018 - The 99th Annual AGC Convention: Celebrating 100 Years of Construction
Constructor - January/February 2018 - 44
Constructor - January/February 2018 - Member and Chapter News
Constructor - January/February 2018 - Overcoming Permit Delays
Constructor - January/February 2018 - 47
Constructor - January/February 2018 - 48
Constructor - January/February 2018 - 2018 Service & Supply Buyers’ Guide – a Special Advertising Section
Constructor - January/February 2018 - 50
Constructor - January/February 2018 - 51
Constructor - January/February 2018 - 52
Constructor - January/February 2018 - 53
Constructor - January/February 2018 - 54
Constructor - January/February 2018 - 55
Constructor - January/February 2018 - 56
Constructor - January/February 2018 - 57
Constructor - January/February 2018 - 58
Constructor - January/February 2018 - 59
Constructor - January/February 2018 - 60
Constructor - January/February 2018 - 61
Constructor - January/February 2018 - 62
Constructor - January/February 2018 - 63
Constructor - January/February 2018 - 64
Constructor - January/February 2018 - 65
Constructor - January/February 2018 - 66
Constructor - January/February 2018 - 67
Constructor - January/February 2018 - Products & Services Marketplace
Constructor - January/February 2018 - 69
Constructor - January/February 2018 - Index to Advertisers
Constructor - January/February 2018 - cover3
Constructor - January/February 2018 - cover4
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