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Federal Infrastructure Bill to Codify Streamlining of Federal Permitting Process in Major Infrastructure Projects

Posted: November 11, 2021

The Infrastructure Investment and Jobs Act, which passed in the House of Representatives on Friday, November 4th and President Biden signed into law on November 15, 2021, includes an important, permanent streamlining to the federal permitting and environmental review process for large infrastructure projects. Known as “One Federal Decision” or “OFD,” it has been fairly overshadowed amongst the headlines about the bill (it comprises only about 15 of the 2,700 pages), but it has the potential to have a profound impact on the timeline for bringing a project to completion.

In recent decades, large infrastructure projects have faced federal permitting delays with respect to, for example, the National Environmental Protection Act (NEPA), often ranging from five to 10 years. Those delays have caused massive amounts of extraneous costs for owners and contractors while they navigated up to 30 different federal statutes. OFD effectively decreases the federal permitting timeline on infrastructure projects from up to 10 years down to no more than two through a framework requiring, among other items: (a) agencies to coordinate immediately and create a joint schedule, (b) one agency to lead the process, (c) agencies to work at the same time and not wait in turn, (d) the generation of a readable review document with page limits, and (e) the production of a timely “record of decision” or “ROD” within 90 days of the agencies’ finishing review of the document.

As an indication of the magnitude of OFD’s potential, a 2015 study revealed that six-year permitting delays for just roads, rails, and bridges alone caused more than $1.65 trillion in extra costs. The quicker timeline and less expensive process should make some projects more viable. Further, even if the federal review results in a rejection of a project, removing years of waiting for an answer should free up capital and bandwidth for other projects.