In January 2020, we wrote about the proposed changes to the National Environmental Policy Act (NEPA) regulations. And now those changes have become a reality. On July 15, President Trump officially announced the overhaul of NEPA regulations. This is the first time in 40 years that the Council on Environmental Quality (CEQ) has comprehensively updated the NEPA regulations. While the final rule makes significant changes to the regulations, it still retains the fundamental framework that requires Federal agencies to consider the environmental impacts of major Federal actions.
Whether you are concerned that the final rule undercuts environmental protection or whether you welcome the modernization of time and page limits, this article is for those of us NEPA practitioners who write NEPA documents daily. Here are our top 7 takeaways of what you need to know to ensure your future NEPA documents meet the new requirements.
1. Not much changed from the proposed to the final rules.
The final rule closely reflects the language proposed in January. We summarized the proposed changes in our January blog article.
While there were rumors that CEQ received hundreds of thousands of comments on the proposed changes, the exact number was not provided. CEQ did summarize all substantive comments into a 603-page document if you’re interested in some light reading. So, if you were already knowledgeable of the proposed changes, you are pretty much good to go.
2. The final rule goes into effect September 14, 2020.
While the final rule goes into effect September 14, it does allow agencies to apply the final rule to environmental documents that begin before that date.
Projects that are in-progress or start before September 14 can follow the previous regulations – or they can be updated to reflect the changes. It is the agencies or even individual project manager’s call. If a project is at least 50% complete it would likely be easier to stay the course and save implementing the changes for the next project.
Federal agencies have approximately 1 year to revise their NEPA procedures to be consistent with the final regulations.
3. Changes how federal agencies assess the appropriate level of NEPA review.
The final rule changes the framework by which federal agencies should assess the appropriate level of NEPA review. The changes shorten the list of items to consider. The appropriate level of NEPA review agencies should focus on short and long term effects, effects on public health and safety, or effects that would violate Federal, State, Tribal, or local law.
For example, the 1978 regulations had language that was interpreted that if a proposed action was highly controversial, then it was sufficient to consider whether an EIS was the appropriate level of NEPA. That language was removed. This provides more flexibility in determining the level of NEPA; whereas before an Environmental Impact Statement (EIS) may have been prepared, an Environmental Assessment (EA) may now suffice.
4. EAs limited to 75 pages and completed in 1 year; and EISs limited to 150 pages and completed in 2 years.
Sharpen your pencils because EAs shall be no more than 75 pages (not including appendices) and completed in 1 year, and EISs no more than 150 pages (not including appendices) and completed in 2 years, unless a senior agency official approves an extension or size increase in writing. Scout strives to keep our NEPA documents concise and focused, but this can be challenging with more complex projects. It can be done. We recently completed a 75-page EA for a Navy project in less than 1 year!
This is an opportunity to have all parties in agreement to maintain EAs and EISs boiled down to the key environmental issues that require detailed analysis and thoughtfully incorporate additional information in appendices. And practically speaking, a shorter document will accelerate reviews of multiple drafts further supporting achievement of the 1-year timeline.
One tip to help to reach the 1 and 2-year marks is clearly communicate a “hard pencils down” date to come to an agreement of exactly what the proposed action is before moving forward with the analysis. For example, for construction projects come to an agreement with stakeholders on the exact footprint, schedule, determine as much design detail as available, and for military operations provide clear parameters of proposed frequency, type of operations, and locations – and then stick to the agreed to description. Or, if the team is not able to agree just yet, use broader project description language to provide flexibility in analysis and implementation.
Another tip to help meet the time limits is to work with subject matter experts early to determine whether the proposed action requires natural resource surveys that often may be limited by seasonal requirements. For example, if you miss the window to survey a particular species during an annual breeding season, your NEPA analysis may be delayed until the next breeding season window the following year. As you do your pre-planning, think about what the “long-pole” items will be in your schedule and plan accordingly.
5. Clarified language to allow for greater flexibility to do supplemental (“tiered”) NEPA documents.
One problem often faced with federal projects is having enough detail on one part of the project but not enough detail on a future part of the project that has not quite been designed or defined. Projects are often delayed to avoid the appearance of breaking up (or segmenting) the project to potentially minimize the environmental impact of a project.
With the revised language it emphasizes that agencies may tier their environmental analyses to defer detailed analysis for environmental impacts of specific program elements until such program elements are ripe for final agency action. Programmatic analyses are becoming more useful and should be a key consideration in the NEPA planners toolbox.
6. Additional EIS changes:
- Definition of Effects: Removed references to direct and indirect effects which will help to simplify the effects analysis
- New Summary Requirement: Adds requirement that EISs shall include a summary that identifies all alternatives, information, and analyses submitted by State, Tribal, and local governments, and other public commenters during the scoping process. Publishing comments is consistent with current agency practice, but the addition of a summary may add additional effort.
- Not required to undertake new scientific/technical research: Directs agencies to use reliable existing data and are not required to undertake new scientific and technical research to inform their analyses. This added language can be very helpful to federal agencies who sometimes are expected to undertake costly research that is not readily available.
- Adds that agencies may respond to individual comments or groups of comments: This could be a time and page saver if an agency decides to respond to groups of comments rather than individual comments which can be lengthy.
- Cost of the EIS: Another new item for EISs, is the requirement that the Final EIS cover include an estimated total cost to prepare the draft and final EIS, including costs of agency full-time equivalent (FTE) personnel hours and contractor costs.
7. No more separate cumulative impacts section required.
The final rule replaces “direct,” “indirect,” and “cumulative” effects with the description “reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.” Agencies will continue to analyze all of the effects that the statute requires to be analyzed. But it reduces those circumstances where agencies previously analyzed effects that were not reasonably foreseeable or did not have a reasonably close causal relationship to the proposed action or alternatives. So, this means the elimination of the “Cumulative Effects” chapter of the NEPA document and more focused analysis.
8. BONUS – I am a government NEPA Project Manager, how will my life change?
Well the good news about reducing the size of documents can help (sometimes) to speed up government reviews of NEPA documents which will help to meet the time limits as well. On the other hand, you might have to do more up front work before contracting the NEPA analysis.
For example, getting as much detail regarding the proposed action such as the construction footprint, ground disturbance, tempo of military operations, if applicable, will help determine the scope of analysis – resulting in a more focused and faster NEPA analysis. It will also help to determine the timing of necessary surveys that may delay the environmental analysis depending if there are any seasonal constraints. It will be important, however, to pay even more attention to the schedule and content of documents.
9. DOUBLE BONUS – We are here to help!
We can help you develop focused and streamlined NEPA approaches for your projects to help ensure you can meet the new requirements. We also excel at proactively tracking schedules and providing solutions for “long-pole” schedule challenges. We can also help your organization update your NEPA regulations. Our environmental attorneys have experience developing NEPA regulations for several federal agencies. We can help you make sense of the changes and keep your organization current and in compliance. Contact us today! firstname.lastname@example.org