H. Rept. 115-881 - RURAL BROADBAND PERMITTING EFFICIENCY ACT OF 2018115th Congress (2017-2018)
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115th Congress } { Rept. 115-881
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
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RURAL BROADBAND PERMITTING EFFICIENCY ACT OF 2018
_______
August 3, 2018.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 4824]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4824) to allow certain State permitting
authority to encourage expansion of broadband service to rural
communities, and for other purposes, having considered the
same, report favorably thereon with amendments and recommend
that the bill as amended do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Rural Broadband Permitting Efficiency
Act of 2018''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Broadband project.--The term ``broadband project'' means
an installation by a broadband provider of wireless or
broadband infrastructure, including but not limited to, copper
lines, fiber optic lines, communications towers, buildings, or
other improvements on Federal land.
(2) Broadband provider.--The term ``broadband provider''
means a provider of wireless or broadband infrastructure that
enables a user to originate and receive high-quality voice,
data, graphics, and video telecommunications.
(3) Indian lands.--The term ``Indian Lands'' means--
(A) any land owned by an Indian Tribe, located within
the boundaries of an Indian reservation, pueblo, or
rancheria; or
(B) any land located within the boundaries of an
Indian reservation, pueblo, or rancheria, the title to
which is held--
(i) in trust by the United States for the
benefit of an Indian Tribe or an individual
Indian;
(ii) by an Indian Tribe or an individual
Indian, subject to restriction against
alienation under laws of the United States; or
(iii) by a dependent Indian community.
(4) Indian tribe.--The term ``Indian Tribe'' means a
federally recognized Indian Tribe.
(5) Operational right-of-way.--The term ``operational right-
of-way'' means all real property interests (including
easements) acquired for the construction or operation of a
project, including the locations of the roadway, bridges,
interchanges, culverts, drainage, clear zone, traffic control
signage, landscaping, copper and fiber optic lines, utility
shelters, and broadband infrastructure as installed by
broadband providers, and any rest areas with direct access to a
controlled access highway or the National Highway System.
(6) Secretary concerned.--The term ``Secretary concerned''
means--
(A) the Secretary of Agriculture (acting through the
Chief of the Forest Service), with respect to National
Forest System land; and
(B) the Secretary of the Interior, with respect to
land managed by the Department of the Interior
(including land held in trust for an Indian Tribe).
SEC. 3. STATE OR TRIBAL PERMITTING AUTHORITY.
(a) In General.--The Secretary concerned shall establish (or in the
case where both Department of the Interior and National Forest System
land would be affected, shall jointly establish) a voluntary program
under which any State or Indian Tribe may offer, and the Secretary
concerned may agree, to enter into a memorandum of understanding to
allow for the State or Indian Tribe to prepare environmental analyses
required under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.) for the permitting of broadband projects within an
operational right-of-way on National Forest System land, land managed
by the Department of the Interior, and Indian Lands. Under such a
memorandum of understanding, an Indian Tribe or State may volunteer to
cooperate with the signatories to the memorandum in the preparation of
the analyses required under the National Environmental Policy Act of
1969.
(b) Assumption of Responsibilities.--
(1) In general.--In entering into a memorandum of
understanding under this section, the Secretary concerned may
assign to the State or Indian Tribe, and the State or Indian
Tribe may agree to assume, all or part of the responsibilities
of the Secretary concerned for environmental analyses under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.).
(2) State or indian tribe responsibility.--
(A) In general.--A State or Indian Tribe that assumes
any responsibility under paragraph (1) shall be subject
to the same procedural and substantive requirements as
would apply if the responsibility were carried out by
the Secretary concerned.
(B) Effect of assumption of responsibility.--A State
or Indian Tribe that assumes any responsibility,
including financial responsibility, under paragraph (1)
shall be solely responsible and solely liable for
carrying out, in lieu of the Secretary concerned, the
responsibilities assumed under that paragraph until the
date on which the program is terminated under
subsection (g).
(C) Environmental review.--A State or Indian Tribe
that assumes any responsibility under paragraph (1)
shall comply with the environmental review procedures
under parts 1500-1508 of title 40, Code of Federal
Regulations (or successor regulations), and the
regulations of the Secretary concerned.
(3) Federal responsibility.--Any responsibility of the
Secretary concerned described in paragraph (1) that is not
explicitly assumed by the State or Indian Tribe in the
memorandum of understanding shall remain the responsibility of
the Secretary concerned.
(c) Offer and Notification.--A State or Indian Tribe that intends to
offer to enter into a memorandum of understanding under this section
shall provide to the Secretary concerned notice of the intent of the
State or Indian Tribe not later than 90 days before the date on which
the State or Indian Tribe submits a formal written offer to the
Secretary concerned.
(d) Tribal Consultation.--Within 90 days of entering into any
memorandum of understanding with a State, the Secretary concerned shall
initiate consultation with relevant Indian Tribes.
(e) Memorandum of Understanding.--A memorandum of understanding
entered into under this section shall--
(1) be executed by the Governor or the Governor's designee,
or in the case of an Indian Tribe, by an officer designated by
the governing body of the Indian Tribe;
(2) be for a term not to exceed 10 years;
(3) be in such form as the Secretary concerned may prescribe;
(4) provide that the State or Indian Tribe--
(A) agrees to assume all or part of the
responsibilities of the Secretary concerned described
in subsection (b)(1);
(B) expressly consents, including through the
adoption of express waivers of sovereign immunity, on
behalf of the State or Indian Tribe, to accept the
jurisdiction of the Federal courts for the compliance,
discharge, and enforcement of any responsibility of the
Secretary concerned assumed by the State or Indian
Tribe;
(C) certify that State laws and regulations, with
respect to States, or Tribal laws and regulations, with
respect to Indian Tribes, are in effect that--
(i) authorize the State or Indian Tribe to
take the actions necessary to carry out the
responsibilities being assumed; and
(ii) are comparable to section 552 of title
5, United States Code, including providing that
any decision regarding the public availability
of a document under the State laws is
reviewable by a court of competent
jurisdiction;
(D) agrees to maintain the financial resources
necessary to carry out the responsibilities being
assumed;
(E) agrees to provide to the Secretary concerned any
information the Secretary concerned considers necessary
to ensure that the State or Indian Tribe is adequately
carrying out the responsibilities assigned to and
assumed by the State or Indian Tribe;
(F) agrees to return revenues generated from the use
of public lands authorized under this section to the
United States annually, in accordance with the Federal
Land Policy Management Act of 1976 (43 U.S.C. 1701 et
seq.); and
(G) agrees to send a copy of all authorizing
documents to the United States for proper notation and
recordkeeping;
(5) prioritize and expedite any analyses under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) under
the memorandum of understanding;
(6) not be granted to a State on Indian Lands without the
consent of the relevant Indian Tribe; and
(7) not be granted to an Indian Tribe on State lands without
the consent of the relevant State.
(f) Limitation.--Nothing in this section permits a State or Indian
Tribe to assume--
(1) any rulemaking authority of the Secretary concerned under
any Federal law; and
(2) Federal Government responsibilities for government-to-
government consultation with Indian Tribes.
(g) Termination.--
(1) Termination by the secretary.--The Secretary concerned
may terminate the participation of any State or Indian Tribe in
the program established under this section if--
(A) the Secretary concerned determines that the State
or Indian Tribe is not adequately carrying out the
responsibilities assigned to and assumed by the State
or Indian Tribe;
(B) the Secretary concerned provides to the State or
Indian Tribe--
(i) notification of the determination of
noncompliance; and
(ii) a period of at least 30 days during
which to take such corrective action as the
Secretary concerned determines is necessary to
comply with the applicable agreement; and
(C) the State or Indian Tribe, after the notification
and period provided under subparagraph (B), fails to
take satisfactory corrective action, as determined by
the Secretary concerned.
(2) Termination by the state or indian tribe.--A State or
Indian Tribe may terminate the participation of the State or
Indian Tribe in the program established under this section at
any time by providing to the Secretary concerned a notice of
intent to terminate by not later than the date that is 90 days
before the date of termination.
(3) Termination of memorandum of understanding with state or
indian tribe.--A State or an Indian Tribe may terminate a joint
memorandum of understanding under this section at any time by
providing to the Secretary concerned a notice of intent to
terminate by no later than the date that is 90 days before the
date of termination.
SEC. 4. CATEGORICAL EXCLUSION FOR PROJECTS WITHIN OPERATIONAL RIGHTS-
OF-WAY.
(a) Categorical Exclusion Established.--Broadband projects carried
out in an operational right-of-way are a category of actions hereby
designated as being categorically excluded from the preparation of an
environmental assessment or an environmental impact statement under
section 102 of the National Environmental Policy Act of 1969 (42 U.S.C.
4332).
(b) Availability of Categorical Exclusion.--On and after the date of
the enactment of this Act, the Secretary concerned may use the
categorical exclusion established under subsection (a) in accordance
with this section.
SEC. 5. FEDERAL BROADBAND PERMIT COORDINATION.
(a) Establishment.--The Secretary concerned shall establish a
broadband permit streamlining team comprised of qualified staff under
subsection (b)(4) in each State or regional office that has been
delegated responsibility for issuing permits for broadband projects.
(b) Memorandum of Understanding.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary concerned, in consultation
with the National Conference of State Historic Preservation
Officers and the National Tribal Historic Preservation Officers
Association, shall enter into a memorandum of understanding to
carry out this section with--
(A) the Secretary of Agriculture or of the Interior,
as appropriate;
(B) the Director of the Bureau of Indian Affairs; and
(C) the Director of the United States Fish and
Wildlife Service.
(2) Purpose.--The purpose of the memorandum of understanding
under paragraph (1) is to coordinate and expedite permitting
decisions for broadband projects.
(3) State or tribal participation.--The Secretary concerned
may request that the Governor of any State or the officer
designated by the governing body of the Indian Tribe with one
or more broadband projects be a party to the memorandum of
understanding under paragraph (1).
(4) Designation of qualified staff.--
(A) In general.--Not later than 30 days after the
date of entrance into the memorandum of understanding
under paragraph (1), the head of each Federal agency
that is a party to the memorandum of understanding
(other than the Secretary concerned) may, if the head
of the Federal agency determines it to be appropriate,
designate to each State or regional office an employee
of that Federal agency with expertise in regulatory
issues relating to that Federal agency, including, as
applicable, particular expertise in--
(i) planning under the Forest and Rangeland
Renewable Resources Planning Act of 1974 (16
U.S.C. 1600 et seq.) and planning under the
Federal Land Policy Management Act of 1976 (43
U.S.C. 1701 et seq.);
(ii) the preparation of analyses under the
National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); or
(iii) consultation and the preparation of
biological opinions under section 7 of the
Endangered Species Act of 1973 (16 U.S.C.
1536).
(B) Duties.--Each employee designated under
subparagraph (A) shall--
(i) be responsible for any issue relating to
any broadband project within the jurisdiction
of the State or regional office under the
authority of the Federal agency from which the
employee is assigned;
(ii) participate as part of the team of
personnel working on one or more proposed
broadband projects, including planning and
environmental analyses; and
(iii) serve as the designated point of
contact with any applicable State or Indian
Tribe that assumes any responsibility under
section 3(b)(1) relating to any issue described
in clause (i).
Amend the title so as to read:
A bill to allow certain State and tribal permitting
authority to encourage expansion of broadband service to rural
and tribal communities, and for other purposes.
PURPOSE OF THE BILL
The purpose of H.R. 4824, as ordered reported, is to allow
certain State and tribal permitting authority to encourage
expansion of broadband service to rural and tribal communities.
BACKGROUND AND NEED FOR LEGISLATION
Approximately 40 percent of rural Americans do not have
access to broadband internet.\1\ Without adequate and
consistent internet access, people are unable to effectively
communicate, gain access to vital information services, and
increasingly, participate in the workforce. An efficient and
effective way to expand broadband to rural areas is through
construction of broadband infrastructure in existing rights-of-
way (ROW) for linear utilities and roads. However, duplicative
federal permitting laws and regulations cause project delays
and cost-overruns.
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\1\Federal Communications Commission, FCC 16-6, 2016 Broadband
Progress Report (2016).
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Currently, providers undertaking projects to install
broadband infrastructure in existing ROWs may be required to
obtain approval from multiple agencies, including the Federal
Highway Administration, State Departments of Transportation,
the Bureau of Land Management (BLM), the U.S. Forest Service
(USFS), and the U.S. Fish and Wildlife Service. If the
infrastructure crosses Indian County, the Bureau of Indian
Affairs is also involved. This process can include extensive
environmental review, in compliance with the National
Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et
seq.), even though the ROWs already underwent NEPA analysis.
These duplicative reviews cause unnecessary delays in permit
processing and discourage providers and States from pursuing
broadband deployment projects, particularly in rural areas.
H.R. 4824, the Rural Broadband Permitting Efficiency Act of
2018, streamlines broadband permitting in ROWs, saving time and
money in broadband deployment.
SECTION-BY-SECTION ANALYSIS OF MAJOR PROVISIONS
Section 3. State or tribal permitting authority
This section requires the U.S. Department of Agriculture,
with respect to National Forest System land, and the Department
of the Interior (DOI), with respect to BLM land, to establish a
program to allow States and Indian Tribes to enter into
memoranda of understanding (MOU). These MOUs would allow States
and Indian Tribes to conduct the environmental analysis under
NEPA for the permitting of broadband within an operational ROW
on USFS land, land under the jurisdiction of DOI, and on Indian
land.
The Governor or an official designated by an Indian Tribe
may enter into such an MOU for a term not to exceed 10 years if
the State or Indian Tribe consents to federal court
jurisdiction, federal environmental review procedures, judicial
review of decisions regarding the public availability of
documents, maintenance of necessary financial resources, and
the provision of any information that the Secretary of
Agriculture or the Secretary of the Interior needs to ensure
that the State or Indian Tribe is carrying out its
responsibilities.
Section 4. Categorical exclusions for projects within operational
rights-of-way
This section creates a categorical exclusion under NEPA for
broadband projects within an existing operational ROW. The
Secretary of Agriculture or the Secretary of the Interior may
use this categorical exclusion in the permitting of broadband
projects within operational ROWs.
Section 5. Federal broadband permit coordination
This section requires that the Secretary of Agriculture or
the Secretary of the Interior, as appropriate, enter into a MOU
with specified agencies to coordinate and expedite permitting
decisions for broadband projects. States and Indian Tribes may
choose to participate in the MOU. Federal agencies that are
parties to the MOU are to send qualified staff to each State or
regional office delegated authority for issuing permits for
broadband projects, with emphasis placed on staff with
expertise in planning under the Forest and Rangeland Renewable
Resources Planning Act of 1974 (16 U.S.C. 1600 et seq.), NEPA,
and the consultation and preparation of biological opinions
under section 7 of the Endangered Species Act of 1973 (16
U.S.C. 1536).
COMMITTEE ACTION
H.R. 4824 was introduced on January 18, 2018, by
Congressman John R. Curtis (R-UT). The bill was primarily
referred to the Committee on Natural Resources, and within the
Committee to the Subcommittee on Federal Lands. The bill was
also additionally referred to the Committee on Agriculture. On
May 17, 2018, the Subcommittee on Federal Lands held a hearing
on the bill. On June 6, 2018, the Natural Resources Committee
met to consider the bill. The Subcommittee on Federal Lands was
discharged by unanimous consent. Congressman John R. Curtis
offered an amendment designated #1; it was adopted by voice
vote. No additional amendments were offered, and the bill, as
amended, was ordered favorably reported to the House of
Representatives by voice vote.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 20, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4824, the Rural
Broadband Permitting Efficiency Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 4824--Rural Broadband Permitting Efficiency Act of 2018
H.R. 4824 would require the Bureau of Land Management (BLM)
to establish a program to enhance the permitting process for
broadband Internet projects in each of the agency's field
offices. The bill also would authorize BLM and the Forest
Service to enter into agreements with states and tribes to
allow those entities to carry out environmental reviews under
the National Environmental Policy Act (NEPA) for broadband
projects within existing rights-of-way on federal lands.
Using information provided by BLM, CBO estimates that
establishing a program to enhance the permitting process for
broadband projects in each of the agency's 14 field offices
would cost $400,000 in 2019. CBO also estimates that
administering those programs would cost about $300,000 a year
over the 2020-2023 period. Those amounts, totaling $1.6 million
over the next five years, would pay BLM staff to develop and
administer the programs. Any spending to cover those costs
would be subject to the availability of appropriated funds.
Because the bill would authorize BLM and the Forest Service
to allow states and tribes to assume responsibility for
completing analyses under NEPA, CBO estimates that implementing
the bill could reduce the amount the agencies spend on those
activities. However, CBO expects that any funds those agencies
would have used for the analyses would instead be used for
similar activities.
Enacting H.R. 4824 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 4824 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 4824 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill, as ordered reported, is to allow
certain State and tribal permitting authority to encourage
expansion of broadband service to rural and tribal communities.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
DISSENTING VIEWS
H.R. 4824 allows states to assume responsibility for the
environmental review permits for broadband projects in existing
operational rights-of-way, such as roads, bridges, trails and
other disturbed areas, and establishes a broad categorical
exclusion from the planning requirement of the National
Environmental Policy Act (NEPA) for these projects.
The genesis of this bill is the idea that the current
permitting process takes too long and the federal government
can rely on resources provided by states to expedite the
process. However, this is an issue that Congress has already
addressed: the recently passed Consolidated Appropriations Act
of 2018\1\ contained several provisions designed to improve
permitting efficiency for broadband and wireless. This included
requiring the Administrator of General Services to develop a
common application form and master contract to streamline
applications for wireless broadband facilities of federal
easements, rights-of-way, and leases. Federal agencies need
time to implement these new provisions.
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\1\P.L. 115-141, Sec. 606.
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At markup, we were happy to support portions of an
amendment offered by the bill sponsor that addressed many of
our concerns with the bill, including ensuring adequate
consultation with tribal governments and clarifying that the
bill does not intend to provide states with the authority to
approve federal permits. Ultimately, the amendment failed in
one critical aspect: it mandated a categorical exclusion.
Rather than require the agencies to go through the rulemaking
process to establish a categorical exclusion, the amendment
provided for the exclusion without further analysis.
Legislatively-created categorical exclusions have the potential
to bypass important guidelines that ensure agencies determine
when it is appropriate to waive NEPA's environmental review and
public involvement requirements.
While we support efforts to increase the broadband
availability throughout rural America, we are concerned that
H.R. 4824 upends critical safeguards that ensure public
involvement in land management decisions.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
[all]