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The new NEPA Rule: Major Changes and Project Impacts

Enacted in 1970, the National Environmental Policy Act (NEPA) requires that federal agencies to engage in a review process to assess the environmental impacts of proposed federal actions, include appropriate disclosure to the public, and be responsive to these factors before making a decision. This process can apply for a variety of projects, including the development of roads, bridges, oil and gas pipelines, energy projects, broadband infrastructure, and water infrastructure, as well as impact forest management and wildfire protection. Environmental review under NEPA applies to federal projects as well as private projects if federal action is involved such as issuance of a permit, federal funding, or approval for activity on federal land.

The NEPA process can take months or years and resource-heavy for both applicants and agencies. For the past several years, the federal government has prioritized the streamlining of the NEPA process.

The Final Rule is the first major revision to NEPA regulations in over forty years. These regulations published in the Federal Register on July 16, 2020 by the Council on Environmental Quality (CEQ) amend 40 CFR Parts 1500-1508.  The intent of this legislation is to facilitate timelier environmental reviews and to simplify regulatory requirements.

What are some of the major changes?
  • New or eliminated definitions and language
    • Federal actions are redefined to exclude “non-Federal projects with minimal Federal funding or minimal Federal involvement where the agency does not exercise sufficient control and responsibility over the outcome of the project.”
    • “Effects” are defined as “changes to the human environment from the proposed action or alternatives that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives.”
    • The concept of cumulative effects is removed. This was previously included to evaluate how an activity may incrementally add to environmental impacts in the context of related “past, present, and reasonably foreseeable future actions.”
  • Implements of page and time limits for environmental review
    • Environmental Assessment (EA) must be completed within 1 year in 75 pages or less.
    • Environmental Impact Statement (EIS) must be completed within 2 years in 150 pages or less.
  • Implements “One Federal Decision”
    • Lead federal agencies are instructed to play a more active role in coordinating review and approval by cooperating agencies.
    • The process will create a joint schedule, shared project description, and a single NEPA review document and record of decision.
  • Specific public comment standards
    • Comments must be specific
    • Must be received during public comment period
    • Certification of addressing public comments
  • Categorical Exclusions
    • Most actions reviewed under NEPA are approved using a Categorical Exclusion (CE) for predefined activities of limited magnitude when “extraordinary circumstances” are not present.
    • The new rule will allow for project design or modification to avoid creating “extraordinary circumstances” that would otherwise preclude use of a CE and instead require an EA or EIS. This formalizes use of “mitigated Categorical Exclusions” that have been accepted by federal courts for NEPA review.
    • Federal agencies are encouraged and allowed to use a CE defined by another federal agency.
How will this affect NEPA projects planned by our clients/project already in progress?

In the short term, there may be little change to the NEPA process by projects already underway. The CEQ regulations provide a general framework to dozens of federal agencies that, in turn, define specific NEPA procedures, specific to activities under the purview of each agency. In recent years, the White House has issued Executive Orders, and the CEQ has issued guidance to federal agencies to modify their NEPA procedures. Many ongoing projects are already being reviewed under new approaches, such as One Federal Decision.

As more agencies formal their specific NEPA regulations, new projects will be subject to changes in the CEQ regulations finalized in September 2020.

Environmental Review Services

Braun Intertec provides comprehensive environmental review services to assist projects subject to NEPA review. Our scientists and engineers are experienced managing a variety of aspects of NEPA and coordinating with relevant federal agencies. Our role is typically to provide environmental consulting and analysis services for private projects that are subject to NEPA review, such as activities that receive federal funding, require federal permits, or take place on federal lands.

In recent years, we have completed NEPA review to assist our clients obtaining approvals from federal agencies such as the Bureau of Land Management, Bureau of Indian Affairs, Department of Housing and Urban Development, Department of Agriculture Rural Development, and US Fish and Wildlife Service. We will continue to track changes to NEPA regulations as federal agencies role out their regulations to implement the new CEQ regulations.

Daniel DeJoode, Ph.D. Senior Scientist

P: 952.995.2459