FEDERAL PERMITTING IMPROVEMENT STEERING COUNCIL

Recommended Best Practices

Fiscal Year 2022


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Acknowledgements

The Federal Permitting Improvement Steering Council (Permitting Council) issues these recommended Best
Practices pursuant to 42 U,S.C, § 4370m-1(c)(2)(B).

The Permitting Council is comprised of 16 members, including the Executive Director (Permitting Council
Chair), the Deputy Secretary (or equivalent) from 13 Federal agencies, the Chair of the Council on
Environmental Quality, and the Director of the Office Of Management and Budget.

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Recommended Best Practices - FY 2022


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Background

The Federal Permitting Improvement Steering Council (Permitting Council) is required to issue
annual recommendations on best practices for improving the Federal permitting process for
"covered projects" under Title 41 of the Fixing America's Surface Transportation Act (FAST-41).1
The Infrastructure Investment and Jobs Act (HJA), added sections (i) (I), (viii), and (ix) to the
existing FAST-41 list of categories of best practices and removed the requirement for the Permitting
Council to annually issue recommendations for best practices for each enumerated category.2 IIJA
also requires each participating agency and lead agency for FAST-41 covered projects to annually
submit to Congress and the Director of the Office of Management and Budget a report assessing
agency performance in implementing these best practices recommendations.3

FAST-41 identifies several categories of best practices:4

(i)	enhancing early stakeholder engagement, including—

(I)	engaging with Native American stakeholders to ensure that project sponsors
and agencies identify potential natural, archeological, and cultural resources
and locations of historic and religious significance in the area of the covered
project; and*

(II)	fully considering and, as appropriate, incorporating recommendations provided in
public comments on any proposed covered project;

(ii)	ensuring timely decisions regarding environmental reviews and authorizations, including
through the development of performance metrics;

(iii)	improving coordination between Federal and non-Federal governmental entities, including
through the development of common data standards and terminology across agencies;

(iv)	increasing transparency;

(v)	reducing information collection requirements and other administrative burdens on agencies,
project sponsors, and other interested parties;

(vi)	developing and making available to applicants appropriate geographic information systems
and other tools;

(vii)	creating and distributing training materials useful to Federal, State, tribal, and local
permitting officials;

(viii)	in coordination with the Executive Director, improving preliminary engagement with
project sponsors in developing coordinated project plans;

(ix)	using programmatic assessments, templates, and other tools based on the best
available science and data; and

(x)	addressing other aspects of infrastructure permitting, as determined by the Council.5

+Bold text indicates the best practice categories for Fiscal Year (FY) 2022.

1	42 U.S.C. § 4370m-l(c)(2)(B).

2	Pub. L. No. 117-58, § 70801 (b)(3)(B)(ii), 135 Stat. 429, 1289 (Nov. 15, 2021).

3	42 U.S.C. § 4370m-7(a)(3).

4	42 U.S.C. § 4370m-l(c)(2)(B).

5	42 U.S.C. § 4370m-l(c)(2)(B)	

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To allow Permitting Council agencies to focus their efforts on implementing improvements within
these new categories, for FY 2022, the Permitting Council is issuing recommendations for best
practices exclusively in the three new IIJA categories.

The Permitting Council issued best practices for categories viii and ix in May 2022. These
recommendations were developed through a collaborative and coordinated interagency process. The
Permitting Council is re-issuing the best practices in September 2022 to include the recommended
best practices on enhancing early Tribal engagement, which were developed through Tribal
consultation, as described below.

Tribal Consultation on the FY 2022 Best
Practices

After conducting Government-to-Government consultations with federally recognized Tribes in
September 2021, and in coordination with Permitting Council Agency Chief Environmental Review
and Permitting Officers (CERPOs), the Permitting Council Executive Director drafted
recommended best practices within the new Tribal engagement best practices category (category
i(I)). In Spring 2022, the Permitting Council Executive Director conducted additional Government-
to-Government consultations with Tribes to receive input on the draft recommended best practices
on enhancing early Tribal engagement from federally recognized Tribal Nations. The Permitting
Council Executive Director hosted three consultation sessions via Zoom on April 28, May 2, and
May 5, 2022. Tribes also provided written comments on the draft recommended best practices in
advance of and following the consultation sessions. The Permitting Council Executive Director
revised the best practices in response to the collected input from Tribes, and the Permitting Council
subsequently reviewed the proposed final recommendations for best practices. The resulting Best
Practices on Enhancing Early Tribal Engagement are provided below.

Because the Permitting Council is issuing these recommendations for best practices late in FY 2022,
Permitting Council agencies will not have a full year to demonstrate implementation of these
recommended best practices in their annual reports to Congress assessing each agency's
performance in implementing all FAST-41 recommendations for best practices. Although these
recommendations for best practices have been developed for use by the agencies for FAST-41
covered projects, the Permitting Council encourages agencies to use these best practices for non-
FAST-41 covered projects to the extent possible.

Recommended Best Practices - FY 2022

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FY 22 Recommended Best Practices

Category (i)(I):6 enhancing early stakeholder engagement, including—engaging with
Native American stakeholders7 to ensure that project sponsors and agencies identify
potential natural, archeological, and cultural resources and locations of historic and
religious significance in the area of the covered project.8

1.	Identify Tribes that may be impacted by a project or may have knowledge and expertise
related to the project by using multiple tools or sources (e.g., the Bureau of Indian Affairs'
Tribal Leaders Directory, the Tribal Directory Assistance Tool, the National Park Service's
Tribal Historic Preservation Officer Directory, etc.) to verify the accuracy of contact
information. Include multiple relevant contacts (e.g., Tribal Government leadership, Tribal
administrators, cultural resources staff, natural resources staff, Tribal Historic Preservation
Officers, etc.) when conducting outreach to maximize chances that the designated
representative(s) of a Tribe are engaged at the appropriate steps in the project's
environmental review and authorization process.

2.	Invite identified Tribes, and any other Tribe who so requests, to participate in consultation
as early as practicable in the environmental review and authorization process and, to the
extent possible, maintain engagement throughout the process. This includes responding to
Tribes' questions and concerns; ensuring that complete, accurate, and high-quality data and
information is provided to Tribes in a timely manner for Tribes' review and comment; and
actively informing Tribes of how the agency incorporated Tribal input into project-related
decision making. In addition to consulting with a Tribe's designated representatives, Federal
agencies should be prepared to conduct Government-to-Government consultation with a
federally recognized Tribe's leadership, where appropriate.

3.	Consult with Tribes to develop reasonable permitting timetables that provide sufficient time
for meaningful consultation on Federal environmental reviews and authorizations. To the
extent possible, coordinate agency requests for Tribal review and input on related, adjoining,
or similar projects to avoid overlapping timeframes and simultaneous requests.

4.	In consultation with Tribes, identify opportunities to incorporate Indigenous Traditional
Ecological Knowledge (ITEK) as best available science in the development of project
alternatives and scoping and proactively identify mechanisms to protect sensitive Tribal
information.9 Request and incorporate, as appropriate, input from Tribes on the types of

6	This is the recommendation for best practices pursuant to 42 U.S.C. § 4370m-l(c)(2)(B)(i)(I).

7	There is a unique Government-to-Government relationship between the United States and federally recognized
Tribal Nations, which are distinct from any other stakeholder in the Federal environmental review and authorization
process for infrastructure projects.

8	The recommendations for best practices are intended to encourage improvements in agencies' engagement with
federally recognized Tribes and, to the extent practicable, with non-federally recognized Tribes. The
recommendations for best practices do not impose new or modify existing legal requirements regarding Tribal
engagement and, in the case of federally recognized Tribes, Government-to-Government consultation obligations.

9	The Council on Environmental Quality (CEQ) and the White House Office of Science and Technology Policy
(OSTP) Memorandum on Indigenous Traditional Ecological Knowledge and Federal Decision Making recognizes
that the Federal Government should engage with ITEK only through relationships with Tribal Nations and Native
communities and in a manner that respects the rights of knowledge holders to control access to their knowledge, to
grant or withhold permission to this knowledge, and to dictate the terms of the application of this knowledge. CEQ
and OSTP anticipate issuing additional guidance on ITEK in Federal decision making in 2022.	

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studies that are conducted and the ways in which studies are conducted to assess a project's
potential impacts on Tribal lands and environmental and cultural resources.

5.	Build trust and mutually defined relationships with Tribes on an ongoing basis and in
advance of project-specific information or consultation requests. Examples of relationship-
building activities include, but are not limited to, hosting biannual meetings with agency and
Tribal leadership, visiting Tribal lands and resources that may be impacted by a project,
establishing or leveraging an existing agency Tribal liaison position to maintain continuity in
relationships throughout potential staff turnover, and hiring Tribal representatives to
participate in the environmental review and authorization process.

6.	In consultation with Tribes, develop and regularly update trainings and other resources on
Tribal consultation and engagement. Trainings and resources should include topics such as
Tribal sovereignty and treaty rights10, Sacred Sites. Government-to-Government consultation
requirements, employing respectful protocols, and engagement before and beyond National
Historic Preservation Act Section 106 consultation. Strongly encourage Federal staff and
third-party contractors to participate in training in advance of Tribal consultation or
engagement with Tribal Nations.

7.	Where appropriate and to the degree the agency has the authority to do so, identify and
pursue opportunities to provide funding or staffing support to Tribes for participating in the
environmental review and authorization process for FAST-41 projects to address Tribe's
resource and capacity constraints. For example, work with Tribes to hire consultants or
technical review staff to increase Tribes' capacity to participate in the environmental review
and authorization process. Actively inform Tribes of the Office of the Executive Director's
ability to transfer funds from the Environmental Review and Improvement Fund to Tribal
governments to facilitate timely and efficient environmental reviews and authorizations for
FAST-41 projects. Tribal Nations interested in this funding mechanism can reach out to the
Permitting Council Executive Director for further discussion at fast.fortyone@fpisc.gov.

Category viii - To improve preliminary engagement with project sponsors in developing
coordinated project plans (CPP) in coordination with the Executive Director, it is
recommended that agencies:

1.	Collaborate with Permitting Council agencies to share information with project sponsors to
support greater understanding of Federal agency Government-to-Government engagement
responsibilities as they relate to environmental review and authorization processes and
impacts to CPPs, including the permitting timetable.

2.	Provide information to project sponsors regarding best practices for identifying,
communicating with, and engaging with Tribes as a complement to Federal agency
consultation, and identify opportunities to collaborate with Tribes to enhance Tribes' access
to infrastructure projects, by leveraging existing resources such as the Advisory Council on
Historic Preservation's Earh Coordination ivith Indian Tribes in Pre-Application Processes Handbook.

3.	Coordinate with the project sponsor as early as practicable to obtain input on project
sponsor milestones that will be used to inform the development of the permitting timetable.

111 The Tribal Treaties Database includes agreements between Tribal Nations and the United States (1778-1886) and
is intended to provide agencies with a resource that allows them to efficiently and effectively determine whether the
project area overlaps with locations that may be subject to treaty and/or reserved rights.	

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4.	Explain how the project sponsor can provide input to agencies as they develop the
permitting timetable and how project sponsors' responsibilities in the permitting process can
impact agencies' ability to meet dates in the permitting timetable, such as a project sponsor's
timely submission of complete applications.

5.	Develop, update, and share guidance or practice tips for project sponsors to explain
authorization application requirements.

6.	Circulate the draft permitting timetable with the project sponsor concurrent with review by
cooperating and participating agencies.

7.	Hold regular meetings, to the extent practicable, between the lead, participating, and
cooperating agencies and the project sponsor to enhance communication and build trust.

Category ix - To use programmatic assessments, templates, and other tools based on the
best available science and data, it is recommended that agencies:

1.	Work with cooperating agencies, including State, local, and Tribal governments, and other
Federal agencies, as necessary, to gather and implement the best available science to inform
decision making in the environmental analysis for a project.

2.	Document best available science used in analysis, where appropriate.

3.	Utilize existing studies, programmatic assessments, environmental analyses, templates,
and/or tools for project-specific analysis to reduce possible duplication of effort and time,
consistent with law.

4.	Implement a process for regular review and updating of existing resources to avoid the use
and dissemination of out-of-date information.

5.	Use or establish cross-agency channels to communicate about new and existing permitting
resources.

6.	Use lesson-learned from completed environmental reviews and authorizations, as applicable,
to develop sector-specific regional programmatic approaches where multiple FAST-41
covered projects are anticipated in a region.

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