Strategies to Successfully Navigate the FAST-41 Application and Process

FAST-41 Program Expands to Benefit Critical Minerals Infrastructure

FAST-41 is a legislatively established process that streamlines federal permitting by coordinating agency reviews and setting clear timelines. It outlines a process for transparently tracking progress online via the Permitting Dashboard, often achieving decisions significantly faster than non-participating projects. The process was formed by, and earned its name from, Title 41 of the Fixing America's Surface Transportation Act.

Critical minerals infrastructure projects were recently added to the FAST-41 program, prompting a longtime mining client to engage HDR for a successful application after unsuccessfully submitting a self-performed FAST-41 application. After providing environmental services to the client for over a decade, we were familiar with the project details. Below are insights gained from applying for and working through the FAST-41 process with our mining client.

1. Tailor Your Application to Specific Regulatory Agencies. We assisted our mining client in developing an overall strategy, leveraging our in-depth understanding of federal regulatory agency requirements to craft a project description that addressed key information regulators need to know. For instance, if the U.S. Army Corps of Engineers is the lead federal agency, the FAST-41 application should clearly identify potential impacts to jurisdictional waterbodies and wetlands. If other federal agencies are involved, the application should speak to the agencies’ regulatory needs, such as claim lease authorizations and access easements. We opted to write and present our client’s FAST-41 application from the regulator’s perspective to smooth the process. The application was approved within two days of resubmittal.
2. Focus Your Energy. To begin the permitting process and review efficiently, we worked alongside our client to focus and prioritize project design work around requirements for a complete permit application. This helped our client prioritize the design of certain aspects of the project that were most important to the permit application review. We shared our knowledge of federal environmental regulations and regulatory agency interactions, which motivated the client to engage the mine site engineering and other contractors to work directly with HDR to compile the application.
3. Be Prepared to Act. Once a project has been accepted into FAST-41, the lead federal agency is responsible for developing a permitting schedule, including all required consultations, within 50 days. Without key information on a mining project, the agency will likely develop a timetable that suits its needs rather than those of the applicants. HDR anticipated this conflict in advance and supported our mining client, as well as the lead agency, by including sufficient detail in the FAST-41 application to create a realistic schedule. Shortly after our mining client was accepted to the FAST-41 program and appeared on the Permitting Dashboard, we submitted its U.S. Army Corps of Engineers permit application. Our client's application was deemed complete quickly with minimal requests for information. 
4. Have Answers at the Ready. Working with the accelerated FAST-41 process means being prepared to respond to requests for information from regulators in a timely and comprehensive manner. By focusing earlier in the process on the most important information-gathering initiatives, our client had baseline data available and an alternatives analysis completed. We helped our mining client understand the information regulators and the public would be asking for, and clarified next steps.

Advantages of the FAST-41 Process

Mining critical minerals projects can often endure a slow regulatory process, which can make project financing exceedingly difficult. Now that these projects are eligible for FAST-41, it’s likely more mining companies will take advantage of the program, especially those with projects that develop critical minerals. Advantages of participating in FAST-41 include:

1. Accelerated permitting process. Regulatory agencies are held accountable if permitting milestones are not met.
2. Enhanced litigation protections for clients following permit issuance. The FAST-41 program shortens the six-year statute of limitations to two years for legal challenges to the final federal environmental reviews and authorizations of a covered project. This helps address challenges more quickly and offers greater predictability.
3. National Environmental Policy Act challenges are reviewed only when filed by an entity that submitted a comment during the project’s environmental review. This limits project owners’ vulnerability to overturned permitting decisions. Opponents need to participate early in the process to have standing later. This change may spur additional comments during the public comment process, as people and organizations might comment to preserve legal options. A strategy to address comments helps manage the process.
4. Most notably, it's a transparent process because the Permitting Dashboard is public. Transparency allows for a predictable endpoint for permitting, facilitating project planning and financing.

We’re continuing to help mining clients meet their obligations under both typical and FAST-41 permitting timelines while preserving the environmental integrity of the project and the review process. FAST-41 does not remove permitting requirements; it makes the process more transparent for everyone, which benefits project owners, stakeholders, regulators and the public.