Economic Stimulus and NEPA Compliance - Streamlining the Environmental Review Process
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Economic Stimulus and NEPA Compliance Streamlining the Environmental Review Process Authors: Ron Bass, ICF Jones & Stokes Alan Summerville, ICF International Ken Bogdan, ICF Jones & Stokes Michael Smith, ICF International
Abstract Complying with the National Environmental Policy Act (NEPA) need not be an impediment to effective, rapid implementation of economic stimulus projects if government agencies streamline the process following the lead of those who have done it successfully. Introduction This paper explores ways that federal and state agencies can act to quickly and efficiently stimulate the economy while simultaneously complying with the NEPA and similar state environmental review laws, sometimes referred to as “Little NEPAs.” This paper also summarizes how the NEPA environmental review process can be streamlined within the framework of existing laws and regulations. On February 17, 2009, President Obama signed HR 1, The American Recovery and Reinvestment Act of 2009, commonly known as the economic stimulus bill. Among its provisions, the legislation provides approximately $100 billion in funding for federal and state infrastructure projects such as energy facilities, transportation projects, school construction, sewer and water systems, and other important public facilities. Because many of these federal and federally funded projects would potentially result in environmental impacts, NEPA compliance is likely to be necessary before they can be implemented. Since its adoption in 1970, NEPA has been the cornerstone of the U.S. system of environmental management. It established an environmental policy for the nation and introduced the concept of environmental impact assessment to government planning and decision8making. NEPA is necessary to require federal agencies to evaluate and consider environmental factors in an open process before making decisions that might “significantly affect the quality of the human environment.”1 Additionally, although NEPA does not directly apply to nonfederal entities (i.e., state agencies, local agencies, tribes, or private entities), sometimes projects proposed by such organizations are subject to NEPA review because of their eligibility for federal funding or the need for federal permitting or federal involvement.2 1 42 U.S.C. 4321, et seq; 40 CFR 1500 et seq: see also, Bass, Herson, Bogdan. The NEPA Book: A Step-by-Step Guide on How to Comply with the National Environmental Policy Act. Second edition. Solano Press Books, Point Arena, CA. 2001. 2 NEPA compliance for transportation projects in California has been delegated to the state under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU). To date, California is the only state to receive such delegation. www.icfi.com/transition 1 ©2009 ICF International, Inc. All Rights Reserved.
Stimulus Projects May Be Subject to NEPA The ramifications of NEPA on economic stimulus are important because the environmental review process mandated by NEPA can be lengthy and can impede the objective of moving swiftly to address current economic needs. NEPA is so relevant in this context that two legislators faced off on the subject in the days leading to passage of HR 1. On February 5, 2009, Senator John Barrasso (R8WY) proposed an amendment to exempt certain stimulus8 related projects from NEPA review to speed implementation. Under Barrasso’s amendment, projects whose reviews took longer than 270 days would have been automatically considered to have no significant impacts and would have been allowed to proceed. On the same day, Senator Barbara Boxer (D8CA) introduced an amendment to “ensure the expeditious completion of National Environmental Policy Act reviews under applicable law.” Barrasso’s amendment failed; Boxer’s passed; and projects implemented with HR 1 funding are subject to the same NEPA compliance requirements as any other federal or federally funded project with the exception of the admonition to expedite NEPA reviews. Specifically, the legislation calls upon federal agencies to devote adequate resources to “ensuring that applicable environmental reviews under NEPA are completed on an expeditious basis and that the shortest existing applicable process under NEPA shall be utilized.” Additionally, the legislation requires that the President (i.e., the Council on Environmental Quality (CEQ)) report to Congress every 90 days on “the status and progress of projects and activities funded by this Act with respect to compliance with NEPA requirements and documentation.”3 In March 2009, the CEQ released guidance to federal agencies on how to accomplish this reporting.4 NEPA Need Not Impede Stimulus Projects While it is true that NEPA documents can take years to prepare, they don’t have to. Early in NEPA’s history, an attitude of over8evaluation resulted in many unnecessarily large and difficult to understand EISs, and cumbersome and redundant processes. In response to such concerns, the CEQ, the agency responsible for NEPA oversight, adopted the NEPA regulations in order to encourage streamlining. As a result, NEPA compliance can be achieved today through three options, only one of them being the potentially time8consuming EIS. What’s more, some federal agencies have developed proven methods to streamline the EIS process, even on large controversial actions. NEPA need not be an impediment to economic stimulus projects if government agencies are committed to streamlining and will follow the lead of those who have done it successfully. 3 American Recovery and Reinvestment Act. Sec.1609 4 Council on Environmental Quality. Reporting NEPA Status and Progress for Recovery Act Activities and Projects. March 11, 2009 www.icfi.com/transition 2 ©2009 ICF International, Inc. All Rights Reserved.
Contents of This Paper This paper contains three main sections: Historical overview of how and when to apply NEPA to federal and federally funded projects. Solutions on how to effectively streamline NEPA compliance for the time-sensitive stimulus effort, including a streamline-at-a-glance table that compiles all the tools and approaches to streamline the NEPA process. Conclusion summarizing our recommendations for preventing NEPA from becoming an impediment to economic stimulus projects. Application of NEPA to Federal and Federally Funded Projects This section provides a brief overview of how and when the NEPA process should be Figure 1. Three Levels of NEPA applied in government planning and decision8making for economic stimulus Compliance projects. For a complete discussion of how to comply with NEPA, we recommend The NEPA Book: A StepbyStep Guide on How to Comply with the National Environmental Policy Act.5 In evaluation whether NEPA applies to an economic stimulus project, an agency must first determine if there is any “federal agency” involvement. NEPA applies only to proposed “federal actions” and not to state and local actions, unless they also involve federal approval, federal funding or other federal handle. Thus, for example, if Congress, in the economic stimulus bill, provided funding directly to a state or local government, with no federal agency involvement, NEPA probably does not apply. On the other hand, if Congress provided funding to a federal agency, which in turn must grant the money to a state or local agency, NEPA would likely apply. The rules regarding when NEPA applies can be tricky, so each agency must carefully evaluate all of the facts, and circumstances surrounding a project as well as the roles and responsibilities of every involved agency. However, once an agency determines that a project is subject to NEPA, they are three possible paths it can follow to comply with the law. Understanding the Three Levels of NEPA Compliance As shown in Figure 1, NEPA and the CEQ NEPA Regulations6 provide three approaches to NEPA compliance: Categorical Exclusion (CE), Environmental Assessment (EA), and Environmental Impact Statement (EIS). Each federal agency has its own NEPA regulations that explain how these documents apply to its unique activities and projects. 5 Bass, Herson, Bogdan. The NEPA Book: A StepbyStep Guide on How to Comply with the National Environmental Policy Act. Second edition. Solano Press Books, Point Arena, CA. 2001. 6 40 CFR 1500 et seq. www.icfi.com/transition 3 ©2009 ICF International, Inc. All Rights Reserved.
Categorical Exclusions If a federal agency expects the environmental effects of an action to be relatively minor, it may usually rely on a CE. Each federal agency is authorized to specify in its NEPA regulations such exclusions from NEPA compliance for projects that, as a category, typically would not individually or cumulatively “significantly affect the quality of the human environment.” The CEQ approves CEs through an open, public process. CEs differ from agency to agency but are typically adopted for small projects, repairs to existing facilities, administrative activities, or actions designed to protect and enhance the environment. Although a CE must be documented for the administrative record, they are often brief and supported by minimal analysis. Environmental Assessments If a proposed action does not fall under a CE, the federal agency typically prepares an EA to determine whether the action would significantly affect the quality of the human environment.7 The EA is typically less detailed than an EIS and subject to fewer procedural requirements. If, through the EA, the agency concludes the action would not significantly affect the human environment, it prepares a Finding of No Significant Impact (FONSI) that explains why impacts are not expected to be significant. On the other hand, if the agency determines that the action could have significant effects, it must prepare an EIS unless the project can be redesigned or mitigated to avoid such impacts. Environmental Impact Statements If the agency determines the action would significantly affect the quality of the human environment either at the outset or through an EA, it must prepare an EIS. An EIS is a detailed evaluation of the environmental effects of the proposed action and considers alternative ways to meet the project’s purpose and need. The EIS must evaluate the direct, indirect, and cumulative impacts of the proposed project and alternatives, and identify measures to mitigate the project’s adverse impacts. To prepare an EIS, the agency must carry out a complex procedural process that complies with the regulations established by the CEQ as well as its own NEPA regulations and handbooks. Choosing the Right NEPA Compliance Document Making the right decision about which level of NEPA compliance and, therefore, which NEPA document to prepare can make a big difference in both the success of NEPA compliance and the outcome of the project. Figure 2 shows an overview of this decision process and the key steps in NEPA compliance. While, in the name of economic stimulus, it might be tempting to select the NEPA path that is easiest and quickest, the risks associated with doing so should be carefully considered. NEPA documents often undergo considerable public and agency scrutiny and can be challenged in court. The quick and easy approach can result in substantial delays if an EA is challenged in court and the agency has to start over by preparing an EIS. The preparation of an EA/FONSI versus an EIS has been challenged in court numerous times, and the courts have frequently required EISs when agencies have prepared EA/FONSIs with unsubstantiated conclusions. 7 See CEQ NEPA regulations’ definition of “significantly” at 40 CFR 1508.27. www.icfi.com/transition 4 ©2009 ICF International, Inc. All Rights Reserved.
Rather than trying to shortcut the NEPA Figure 2. Overview of the NEPA Process process, streamlining it within the existing legal framework by using proven methods, is the best decision an agency can make in this regard. Minimizing the NEPA Timeframe Poorly implemented NEPA review can contribute to project delay, particularly when an EIS is required for a complex and controversial proposed action that involves the integration of other environmental laws. One recent study revealed that the average time for preparing an EIS was 3.4 years, and longer for the U.S. Army Corps of Engineers (3.7 years) and the Federal Highway Administration (FHWA) (5.5 years).8 A poorly executed EIS can delay the economic benefits of project construction and implementation for years. Given the importance of economic stimulus projects, agencies should be able to prepare an EIS in less than a year, even under NEPA’s existing framework. However, most federal actions do not require an EIS. Most federal actions are approved based on a CE or EA and are processed far more quickly as a result. The timeframe for completing these documents varies greatly depending upon the nature of the project and the specific agency’s NEPA procedures and practices. While little empirical evidence Source: The NEPA Book. Solano Press Books exists in regard to timing, projects subject to CEs are generally processed very quickly and most EAs are finished within several months. In the case of CEs, most agencies simply document the use of the exclusion with a minimal amount of environmental data and analysis and little or no public notice. 8 deWitt P. and deWitt C. How Long Does it Take to Prepare an Environmental Impact Statement. Environmental Practice 10(4) National Association of Environmental Professionals. December 2008. www.icfi.com/transition 5 ©2009 ICF International, Inc. All Rights Reserved.
Incorporating Interagency Review and Consultation Requirements The CEQ NEPA Regulations require that agencies Figure 3. States with Environmental Impact Assessment Laws complying with NEPA prepare draft EISs (e.g., “Little NEPA” laws) concurrently with and integrated with the environmental impact analyses, related surveys, and studies required by other laws, such as the Fish and Wildlife Coordination Act and the National Historic Preservation Act. This means that when an agency is going through the NEPA process it must consult with other federal environmental regulatory agencies and incorporate the recommendation of such consultations into its NEPA document. Unfortunately, in practice, this interagency consultation often delays NEPA document preparation. Any efforts to streamline NEPA should also focus on streamlining the interagency review and consultation process. Source: The NEPA Book. Solano Press Books Coordinating Review under State Little NEPA Laws NEPA only applies to federal agencies and proposed federal actions such as those carried out directly by federal agencies or those that are approved or funded by federal agencies. To the extent that the economic stimulus bill provides funding directly to states with no federal agency involvement, NEPA would not apply. However, 18 states and the District of Columbia have adopted their own environmental impact assessment laws modeled after NEPA. In those states, shown in Figure 3, many proposed economic stimulus projects would require preparation of state environmental impact assessment documents similar to those under NEPA. Thus, another coordination challenge is that NEPA encourages the preparation of joint environmental review documents to integrate environmental reviews and expedite the document preparation process. Similarly, most state Little NEPA laws encourage cooperation with federal agencies implementing NEPA. Therefore, in states with Little NEPA, federal agencies need to coordinate with their state counterparts to produce joint documents, or to piggyback onto the NEPA document. Streamlining NEPA Compliance for Economic Stimulus Projects Streamlining the environmental review process is the most effective way to comply with federal and state regulations to protect the environment without impeding the speed called for under the economic stimulus plan. Streamlining NEPA is not a new concept. Both the CEQ and the Congressional Research Service have undertaken efforts to improve the NEPA process. In 2003, the CEQ completed a thorough interagency review of NEPA and www.icfi.com/transition 6 ©2009 ICF International, Inc. All Rights Reserved.
made many recommendations to this end.9 Similarly, in 2006, the Congressional Research Service studied NEPA implementation and made various streamlining recommendations.10 Building on those studies, and enhanced by ICF International and ICF Jones & Stokes’ considerable federal agency experience with successful NEPA implementation, we have developed recommendations for streamlining the preparation of EAs and EISs. Table 1 below outlines the recommendations, and the following pages describe them in detail. Table 1. Streamline at–a4Glance—Tools and Approaches to Streamline the NEPA Process How to Streamline the Preparation of Environmental Assessments • Develop checklists to standardize preliminary evaluation • Provide supporting documentation for Findings of No Significant Impact • Develop uniform thresholds for determining significance (FONSIs) • Design projects to avoid or reduce impacts How to Streamline the Preparation of Environmental Impact Statements (EISs) • Obtain High-level Commitment to Streamlining • Develop Comprehensive Strategies for Integrating NEPA with Other Laws • Ensure Adequate Staffing for NEPA Compliance - Develop a comprehensive environmental compliance strategy • Establish and Stick to Time Limits for EIS Preparation - Rely on written memorandums of understanding (MOU) • Establish and Stick to Deadlines for Internal Document - Establish interagency steering committees or resource advisory Review committees • Establish Internal Steering Committees • Engage in effective collaboration with concerned state agencies, local • Rely on Programmatic EISs and Tiering agencies, and stakeholders • Use Scoping to Eliminate Unnecessary Studies • Encourage pre-application consultation with regulatory agencies. • Prepare Concise and Readable Documents • Conduct “Just-in-Time” NEPA Training • Prepare for the Writing Process in Advance • Use Efficient and Expedited Contracting Approaches • Involve the Council on Environmental Quality • Consider What States Can Do Streamlining EA Preparation The two main purposes of an EA are to assist the lead agency in determining whether it is necessary to prepare an EIS and to support the adoption of a FONSI when an EIS is not necessary. The tools and approaches listed below and described in detail can help agencies streamline EA preparation. Develop Checklists to Standardize Preliminary Evaluation Develop environmental evaluation checklists for various types of projects to assist in the preliminary project review. Such standardized evaluation tools can help eliminate unnecessary topics from environmental documents by facilitating decisions about which issues do or do not have the potential for environmental impact. Checklists could include the characteristics of “context” and “intensity” that typically occur for the agency’s projects. For example, the Federal Aviation Administration (FAA) and the Department of Housing and Urban Development (HUD) use checklists for determining whether CEs are applicable. Such checklists could easily be tailored to evaluate projects that are not excluded. Additionally, in California, under the California Environmental Quality Act (CEQA), state and local agencies use a standard Initial Study Checklist that contains a series of questions relating to 9 Council on Environmental Quality.The NEPA Task Force Report to the Council on Environmental Quality. 2003. 10 Congressional Research Service.The National Environmental Policy Act : NEPA Streamlining. 2006. www.icfi.com/transition 7 ©2009 ICF International, Inc. All Rights Reserved.
a broad range of potential impacts. This checklist guides agencies through a screening process to determine whether impacts are significant. This checklist could also be tailored for other needs. Develop Uniform Thresholds for Determining Significance When preparing EAs, many federal agencies agonize over the determination of whether an impact is “significant,” which triggers an EIS. While significant is defined in the CEQ NEPA regulations to include both context and intensity, and intensity is further defined by ten criteria, in practice there is little uniformity in how these concepts apply to real projects. The practical result of such uncertainty is that agencies often reach conclusions that are not well8supported. To aid in determining whether an EIS is necessary and to better support FONSIs, agencies should develop standardized thresholds of significance that help spell out when impacts significantly affect the quality of the human environment and when they do not. The use of established thresholds can help streamline the process of preparing an EA and provide better support for FONSIs. Design Projects to Avoid or Reduce Impacts Consider the Mitigated FONSI as one method to streamline through the EA process. NEPA allows federal agencies, through the EA process, to mitigate the impacts of a project and thereby adopt a FONSI rather than prepare an EIS. In the past, some agencies have been reluctant to rely on the so8called Mitigated FONSI because it is not specifically defined in the regulation. Now, however, the courts have allowed them, and agencies should not shy away from this acceptable method of streamlining. In view of the growing use of Mitigated FONSIs and their judicial acceptance, in 2003, the CEQ recommended that agencies utilize them when appropriate.11 When an agency uses a Mitigated FONSI, it must, however, take a “hard look” at the environmental impacts. Additionally, the mitigation measures upon which the FONSI is based must be adequate, specific, and feasible. Provide Supporting Documentation for Findings of No Significant Impact When a federal agency relies on a FONSI, it must explain why the proposed action would not significantly affect the quality of the human environment. As indicated above, the term is significantly defined by the dual concepts of “context” and “intensity.”12 To adequately support a FONSI, an agency should explain why intensity of impacts would not be significant in view of the particular context where the impacts would occur. Unfortunately, in practice, some agencies do not adequately use or explain the context and intensity factors in their FONSIs or in the underlying EA. NEPA practice would be improved, and more legally defensible documents prepared, if agencies did a better job of explaining their conclusions based on the “context” and “intensity” criteria. Streamlining EIS Preparation When an EIS is necessary for an economic stimulus project, there are many approaches federal agencies can take to streamline the process. The following approaches have proven successful in the past and could help expedite implementation of projects resulting from the economic stimulus plan. 11 Council on Environmental Quality.The NEPA Task Force Report to the Council on Environmental Quality: Modernizing NEPA Implementation. 2003. 12 40 CFR 1508.27 www.icfi.com/transition 8 ©2009 ICF International, Inc. All Rights Reserved.
Obtain High8level Commitment to Streamlining One of the best strategies to streamline NEPA compliance is for agency directors and managers to make an overt commitment to making NEPA work better and preparing documents more expeditiously. Once management makes this commitment and engages in the EIS process, staff and their consultants are likely to follow. Such a commitment is essential to taking advantage of all the other tools available to federal agencies to streamline NEPA. Ensure Adequate Staffing for NEPA Compliance To ensure the success of the NEPA process, the federal agency should assign highly experienced managers, especially for complex, controversial NEPA projects. EIS management requires a combination of management, technical, legal, and communication skills that only a few professionals possess. Agencies should also commit enough qualified staff members so that bottlenecks do not occur during internal reviews of the EIS and related documents. Similarly, agencies should retain consultants with the experience and capacity to expedite the EIS process in a technically and legally defensible manner. Establish and Stick to Time Limits for EIS Preparation Although NEPA does not define specific time limits for EIS preparation, the CEQ NEPA Regulations allow federal agencies to do so.13 Unfortunately, most federal agencies believe that adhering to strict time limits is not feasible, and many agencies have established internal review procedures that impede timely completion of the NEPA process. However, agencies have the ability, based on the CEQ regulations, to modify their current procedures and adopt time limits for EIS preparation. Some agencies have proven track records in following time limitations. For example, in 2009, the National Highway Transportation Safety Administration prepared an EIS in less than one year for corporate average fuel efficiency standards (CAFE standards), a highly complex and controversial program. Additionally, some states with Little NEPA laws have proven it is possible to prepare EIS8like documents in one year. Under CEQA, for example, Environmental Impact Reports (EIR) (California’s counterpart to an EIS) are often completed within one year. In fact, EIRs for private development projects must be completed within one year.14 Establish and Stick to Deadlines for Internal Document Review One of the most widespread causes of EIS delay is multiple, lengthy, internal reviews of administrative drafts. The EIS process can be greatly expedited if each federal agency develops and enforces internal deadlines for completion of each step of the NEPA process including scoping, draft EIS, final EIS, and records of decision. It is particularly important to obtain commitments from responsible officials within the agency and with the cooperating agencies to undertake review of administrative drafts according to an established, expeditious timeframe. Establish Internal Steering Committees On particularly challenging, time8sensitive programs and projects, internal steering committees can provide guidance to the agency’s EIS project management team and the consultants preparing the EIS in areas such as public involvement strategies, agency consultation strategies, analytical methodologies, and compliance strategies. This can occur early in the process and throughout the duration of EIS preparation. 13 40 CFR 1501.8 14 14 Cal Code Reg 15108 www.icfi.com/transition 9 ©2009 ICF International, Inc. All Rights Reserved.
Such a committee can reveal major issues and develop solutions early on so they don’t arise during the review of the administrative draft or at other inopportune times. Members can include representation from senior agency management, agency policy staff, the general counsel’s office, CEQ, staff from agencies with unique expertise or jurisdiction (e.g., a member of a cooperating agency), and the Department of Justice’s Department of Environment and Natural Resources (if the EIS is on remand or litigation is highly likely). While the members may not all share the lead agency’s overall mission or project8specific goals, they need to commit to a constructive, expedited process rather than surfacing issues that could have been addressed early in the process or revisiting issues that have already been agreed to (e.g., purpose and need, reasonable range of alternatives, depth of analysis). Rely on Programmatic EISs and Tiering NEPA encourages agencies to prepare program8level EISs (Programmatic EISs) for broad federal actions such as the adoption of a regulation, policy, plan or program.15 Additionally, Programmatic EISs are often used to evaluate the impacts of groups of projects that are related geographically. NEPA also encourages agencies to use “tiering” to streamline the preparation of environmental documents. Tiering refers to the practice of addressing general matters in broad EISs and of addressing issues specific to the individual project in subsequent narrower documents that incorporate the general discussions by reference. Tiering is a well8established method for streamlining the preparation of NEPA documents. Using Programmatic EISs in conjunction with tiering, agencies can significantly reduce the need for new, time8 consuming studies that have already been included in the programmatic document. This approach would be particularly helpful for any economic stimulus projects that can tier from an existing Programmatic EIS. In such situations, the time needed to comply with NEPA can be substantially reduced, and, in some cases, no new NEPA studies would be necessary. Some agencies, such as the Department of the Interior’s Bureau of Land Management (BLM), have further refined the tiering concept with the use of a document known as a Determination of NEPA Adequacy (DNA). Under BLM’s NEPA rules, a DNA can be used when the agency determines that the project at hand was adequately evaluated in a prior NEPA document (typically a first8tier Programmatic EIS). Use Scoping to Eliminate Unnecessary Studies Scoping refers to the process by which lead agencies solicit input from the public and interested agencies on the nature and extent of issues and impacts to be addressed in an EIS.16 Scoping can be an important tool in eliminating unnecessary studies from an EIS. During scoping, the agency can eliminate a specific issue from the EIS if it determines that the issue is not relevant to the project, thereby saving time and effort. Prepare Concise and Readable Documents The CEQ regulations require an EIS to be written in plain language so that decision8makers and the public can readily understand it.17 The regulations also specify that the text of an EIS shall normally be less than 150 pages, except for highly unusual or complex projects, in which case the length shall not exceed 300 pages. For some of their more controversial transportation projects, the FHWA and the Washington State Department of Transportation have prepared “reader8friendly” EISs that minimize technical jargon and acronyms and use easy8to8 15 40 CFR 1502.4(b) 16 40 CFR 1501(a), (b) 17 40 CFR 1502.8 www.icfi.com/transition 10 ©2009 ICF International, Inc. All Rights Reserved.
understand graphics and diagrams so the content and, therefore, the conclusions are more accessible to the public and decision8makers. Unfortunately, however, such efforts are uncommon, i.e., the CEQ regulations are often overlooked. Too many NEPA documents are overly long and filled with technical jargon and acronyms that make them difficult to understand for the public and decision8makers alike. By making a commitment to preparing concise, readable documents, agencies can go a long way toward improving EIS practice and expediting the process. Prepare for the Writing Process in Advance To expedite the actual writing process, determine as much as possible about the content and look of the document in advance. Provide or develop a template that addresses font and style considerations. Determine if the agency has a current style guide and, if so, use it to develop project8specific style guidelines that spell out: What terminology to use (e.g., how will the project be referred to, what measurement system will be used); When and how to incorporate and refer to graphics and tables; What level of detail will be used for the analysis; and What information will be included in the document and what will be appended or merely referenced. If the NEPA lead agency has no style guide, the Government Printing Office (GPO) Style Manual is a good place to start. Consultants may also have style guides that can be adapted. Providing such information in advance will help writers standardize the writing and allow reviewers to focus on technical content rather than wordsmithing. Develop Comprehensive Strategies for Integrating NEPA with Other Laws When complying with NEPA, federal agencies must concurrently comply with many other federal environmental laws. In practice, integrating NEPA with other laws is often a complex process fraught with delay. The following approaches make integration more efficient and can effectively expedite integration goals. Develop a comprehensive environmental compliance strategy. At the beginning of each NEPA project, the lead agency should develop a systematic, step8by8step approach to integration with other laws. This approach should include identifying all permitting and consulting agencies, defining roles, and establishing the timeline during which they will be involved in the process. Rely on a written MOU. If a written agreement will help other agencies honor their commitments to the comprehensive environmental compliance strategy, the lead agency should develop an MOU among key cooperating agencies in which internal review periods are established. Establish interagency steering committees or resource advisory committees. Agencies could consider organizing an interagency steering committee to ensure cooperation among agencies whose views on a project might diverge.18 18 However, the federal agency should be cognizant of the requirements of the Federal Advisory Committee Act. www.icfi.com/transition 11 ©2009 ICF International, Inc. All Rights Reserved.
Engage in Effective Collaboration with Concerned State Agencies, Local Agencies, and Stakeholders Since public participation is one of the cornerstones of the NEPA process, federal agencies should ensure that they include effective collaboration with state and local agencies and other stakeholders in preparing NEPA documents. Better collaboration may involve additional scoping meetings, open houses, notices, and outreach to affected communities. CEQ has embraced the concept of collaboration as a way to streamline NEPA and has prepared a valuable handbook, entitled Collaboration in NEPA: A Handbook for Practitioners, that explains how it should be done.19 On particularly complex or controversial projects, federal agencies may want to engage the services of professional mediators or facilitators to maximize the effectiveness of collaboration. Although collaboration may involve considerable up8front effort to reach out to affected parties, the payoff is worthwhile since early and frequent public participation is the best way to gain acceptance for federal projects, thereby reducing opposition and the likelihood of litigation. Encourage Pre8Application Consultation with Regulatory Agencies To encourage project applicants to consider impacts and satisfy applicable environmental laws, agencies should develop procedures for allowing applicants to engage in pre8application consultation with regulatory staff. Through such early consultation and the design changes that will hopefully result from it, agencies can substantially shorten the evaluation time for projects once formal applications are submitted. Some agencies already have such procedures in place. For example, the Federal Energy Regulatory Commission has developed a “Pre8Filing Environmental Review Process” under which projects are considerably expedited. Conduct “Just8in8Time” NEPA Training Experience has shown that the level of knowledge about EIS preparation is not consistent, even among the parties who will be participating in EIS preparation and review. The time necessary for some parties to get up to speed often delays the NEPA process. As a part of the scoping process, and throughout the process as needed, the agency could conduct internal, on8the8job NEPA training sessions to explain all aspects of EIS preparation so that everyone is on the same page. Use Efficient and Expedited Contracting Approaches Many EISs are prepared by third8party contractors (e.g., environmental consultants) who must be selected and retained by the federal agency under sometimes complex federal procurement procedures. Sometimes this selection and contracting process can be prolonged and delay the start of preparing the EIS. An Indefinite Quantity Contract is a master agreement under which a consultant is selected in advance to prepare one or more NEPA documents on a retainer basis. Use of such a contract avoids the need to select consultants anew each time a project is proposed. Involve the Council on Environmental Quality For particularly complex and important projects, the lead agency may solicit CEQ involvement. The CEQ is committed to streamlining NEPA and can have a positive influence on agency interaction, which is often responsible for slowing down the NEPA process. 19 Council on Environmental Quality. Collaboration in NEPA: A Handbook for Practitioners. 2007. www.icfi.com/transition 12 ©2009 ICF International, Inc. All Rights Reserved.
Consider What States Can Do States with Little NEPA laws can achieve considerable streamlining within their existing legal framework using some of the same tools suggested here. States without environmental impact assessment laws should, where appropriate, still conduct environmental constraint studies to design projects that avoid or minimize environmental impacts. Additionally, when both federal and state approvals are necessary, most of the state environmental impact assessment laws encourage state and local agencies to cooperate with federal agencies to prepare joint documents to reduce duplication of effort and to save cost and time. Conclusions As these recommendations indicate, by taking advantage of some of the established methods for streamlining the NEPA process, government agencies can achieve the objectives of the economic stimulus package within the existing legal and regulatory framework of NEPA. EA and EIS preparation and review can be significantly shortened if senior federal agency officials commit to and engage in an expedited NEPA process and convey that sentiment to their staff members who are responsible for NEPA compliance. Once the whole NEPA paradigm shifts to a commitment to effective, adequate, expedited environmental review, the other proven techniques for streamlining can be pursued and are likely to be far more successful. While NEPA mandates that agencies follow established procedures for taking a “hard look” at the environmental impacts of their actions, compliance does not have to cause undue delay, especially when it comes to implementing economic stimulus projects. About the Authors This paper was written by Ron Bass, Alan Summerville, Ken Bogdan and Dr. Michael Smith. Mr. Bass, a senior regulatory specialist with ICF Jones & Stokes,has participated in a broad variety of planning and environmental studies under the NEPA, CEQA, and other state planning laws. He is co8author of The NEPA Book: A StepByStep Guide on How to Comply with the National Environmental Policy Act and The CEQA Deskbook: A StepByStep Guide on How to Comply with the California Environmental Quality Act. Mr. Summerville, a vice president with ICF International, has more than 20 years of experience analyzing the environmental impacts of complex controversial projects in the transportation and energy sectors. He has provided policy and regulatory support on the Executive Order on NEPA Streamlining and Stewardship for transportation projects to high8level work groups from agencies such as the FHWA, the Federal Transit Administration, the FAA, the Environmental Protection Agency, and CEQ. Mr. Bogdan, environmental counsel with ICF Jones & Stokes, has more than 19 years of experience managing projects for ICF Jones & Stokes. He specializes in analyzing issues regarding compliance with environmental laws and regulations, including NEPA, CEQA, the Clean Water Act, the Federal Endangered Species Act, and the California Endangered Species Act. Mr. Bogdan is a co8author of The NEPA Book: A StepByStep Guide on How to Comply with the National Environmental Policy Act and The CEQA Deskbook: A StepByStep Guide on How to Comply with the California Environmental Quality Act, as well as other publications about environmental laws and regulations. Dr. Smith, a senior manager with ICF International, specializes in NEPA compliance and has managed a variety of complex NEPA projects for numerous federal agencies. He is a frequent speaker and trainer on NEPA issues, and serves on the faculty of the Duke Environmental Leadership Program at the university’s Nicholas School of the Environment, a program co8sponsored by CEQ. www.icfi.com/transition 13 ©2009 ICF International, Inc. All Rights Reserved.
The views expressed in this paper and any errors are those of the authors and not necessarily those of ICF International or ICF Jones & Stokes. About ICF International ICF International (NASDAQ:ICFI) partners with government and commercial clients to deliver consulting services and technology solutions in the energy, climate change, environment, transportation, social programs, health, defense, and emergency management markets. The firm combines passion for its work with industry expertise and innovative analytics to produce compelling results throughout the entire program life cycle, from analysis and design through implementation and improvement. Since 1969, ICF has been serving government at all levels, major corporations, and multilateral institutions. More than 3,000 employees serve these clients worldwide. ICF’s Web site is www.icfi.com. About ICF Jones & Stokes ICF International has joined forces with Jones & Stokes, one of the premier multidisciplinary environmental consulting firms in the western United States. For nearly 40 years, Jones & Stokes has supported a broad mix of federal, state, and local government and private8sector clients on infrastructure improvement projects, restoration and planning projects, and compliance with mandated government programs. ICF Jones & Stokes provides an array of integrated services in environmental planning and natural resource management, especially in the transportation, water, energy, and natural resources sectors. ICF Jones & Stokes’ Web site is www.jonesandstokes.com. www.icfi.com/transition 14 ©2009 ICF International, Inc. All Rights Reserved.
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