Presentation by Rich Walter, ICF on the history of NEPA Streamlining and Top Ten Tips for efficient NEPA review

1. At the Speed of Light: Moving your
Project through the Environmental
Review and Permitting Process
Rich Walter, ICF, Senior Fellow,
Environmental Review/Permitting
April 18, 2018
NJ TransAction
Conference
2018

2. Agenda
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A Brief History of Federal Streamlining
Rich Walter, Senior Fellow, Environmental
Review/Permitting ICF
Top Ten Tips to Streamline the NEPA Process
Rich Walter, Senior Fellow, Environmental
Review/Permitting, ICF

3. Defining Streamlining
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 Definitions
–Merriam-Webster Definition of Streamline: The path of a particle in a fluid
relative to a solid body past which the fluid is moving in smooth flow without
turbulence.
–Environmental Streamlining Definition: The shortest path to meeting
environmental review and permitting requirements with the highest schedule
confidence.
 Key outcomes desired from Environmental Streamlining
–Schedule certainty and reduced duration
–Efficient and coordinated environmental review and permitting
–Minimizing resistance (“turbulence”)
 Current NEPA Context
–Of all NEPA documents: 95 percent categorical exclusions (CEs), 5 percent
are environmental assessments (EAs), and less than 1 percent are
environmental impact statements (EISs).
•But average EIS completed in 2016 took 5.1 years from notice to record of
decision (17% of which took 2 years or less)

4.  CEQ’s Regulations for Implementing the Procedural Provisions of the
National Environmental Policy Act of 1969
 Several policies on timeliness and cost savings
 Regulation specifically addresses key streamlining areas:
–reducing delays
–setting time limits
–early agency interaction
–avoiding duplication through methods like incorporation by reference
–guidance on decision-making procedures 4
A Brief History of Streamlining

5.  Uniform regulations for NEPA implementation to:
Reduce Paperwork
Reduce Delays
Produce Better Decisions
 Many concepts used for next 40 years
Early coordination and integration
Report writing clarity and conciseness
Focus on “real” alternatives
Categorical Exclusions and EAs/ FONSIs
Page limits and time limits
 “The regulations establish a streamlined process,
and one which has a broader purpose.”
4/18/2018 5
A Brief History of Streamlining

6.  1986:
 Vice President’s Regulatory Relief Task Force recommended that, “CEQ’s streamlining
regulations for the implementation of NEPA requirements should receive full support
from the Administration and the federal agencies”.
 1991:
 Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) makes further
changes to improve and streamline the environmental process for transportation
projects
 1998:
 Transportation Equity Act for the 21st Century (TEA-21) mandated Environmental
Streamlining for timely delivery of transportation projects
 2002:
 Executive Order 13274 emphasizing the importance of expedited transportation
project delivery while being good stewards of the environment.
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A Brief History of Streamlining

7. Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU).
 New environmental review process for highways, transit, and multimodal
projects, emphasizing early coordination with agencies and public and limited
statute of limitations for legal challenges.
 Allowed States to assume responsibility for categorical exclusions with FHWA
in a monitoring role.
 Allowed 5 states (AK, OH, OK, TX, CA) to assume DOT NEPA responsibilities
for highway projects.
 Streamlined Section 4(f) compliance for “de minimis” Impacts.
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A Brief History of Streamlining

8. Moving Ahead for Progress in the 21st Century Act
(MAP-21)
 Expanded authority for Categorical Exclusions,
including more project types.
 States allowed to acquire property before NEPA.
 Earlier coordination
 Greater linkage between the planning and
environmental review processes
 Consolidating environmental documents.
 Framework for setting deadlines.
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A Brief History of Streamlining

9.  Congress passes the Fixing America’s Surface Transportation (FAST) Act
which codified the FHWA “Every Day Counts” initiative, allowed greater use of
funds for permitting improvements, improved early engagement, expanded
the federal project Dashboard, formalized the Federal Permitting
Improvement Steering Council (FPISC), accelerated processes for
emergency projects, and established a pilot program to delegate NEPA to
certain states for transportation projects.
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A Brief History of Streamlining

10. Federal Permitting Improvement Steering Council.
 Multi-agency FPISC or its member agencies have designated 37
infrastructure projects as “covered projects” under FAST-41.
 These projects range from natural gas pipelines to wind and solar generation
facilities to transmission lines.
 The Federal Energy Regulatory Commission (FERC) is serving as lead
agency for more covered projects than any other agency, with the Department
of the Interior a close second.
 Covered projects–which can be tracked online on the Permitting Dashboard–
can benefit from several specific agency policies and tools to improve
coordination of federal reviews, increase transparency and accountability, and
increase predictability. 10
A Brief History of Streamlining

11.  January 24, 2017: Executive Order 13766
 directs federal agencies to expedite environmental review and approvals for
“high priority” infrastructure projects.
 establishes permitting reform as one of the Administration's top priorities.
 March 28, 2017, Executive Order 13783
 Calls for immediate review of all agency actions that “potentially burden the
safe, efficient development of domestic energy resources.”
 August 15, 2017, Executive Order 13807
 Complete environmental reviews within two years
 Jointly issue “One Federal Decision”
 All necessary permits or authorizations within 90 days of Decision.
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A Brief History of Streamlining

12. September 14, 2017: CEQ List of Actions and Timeline
 Develop framework for implementing “One Federal Decision”–along with the
Office of Management and Budget and the FPISC;
 Coordinate with the FPISC, US Department of Transportation and US Army
Corps of Engineers with regard to “high priority” infrastructure projects;
 Review its regulations under the National Environmental Policy Act (NEPA) to
identify necessary changes and clarifications;
 Issue guidance to simplify and accelerate the NEPA process; and
 Coordinate an interagency working group to identify impediments to efficient
environmental reviews and permitting.
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A Brief History of Streamlining

13.  US Department of the Interior Departmental Guidelines
 Bureau of Land Management (BLM) Recommendations
 US Forest Service (USFS) Rulemaking
 US Environmental Protection Agency (EPA)
 Proposed a standard, six-month time frame for all permit decisions by
September 30, 2022. Set forth in EPA's Strategic Plan for FY 2018-2022,
which included a commitment to speed up the processing of permits and
modifications.
 Narrower rule for “Waters of the Unites States” which could streamline
permitting simply by making a smaller universe of waterbodies subject to EPA
permitting programs.
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A Brief History of Streamlining

14. April 9, 2018 One Federal Decision MOU
 Applies to: Major Infrastructure Projects
 Highlights:
–Two-year goal for env. reviews from NOI to ROD
–Swift determination of lead/cooperating agencies
–Preliminary project planning emphasized
–Single EIS
–Single permitting timetable released publically
–Specific concurrence points and concurrent reviews
–Cooperating agency comments limited to area of expertise/jurisdiction
–Automatic elevation of dispute resolution
–Single Record of Decision (ROD)
–Federal permits issued within 90 days of ROD
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A Brief History of Streamlining

15. Top Ten Tips
to Streamline the NEPA Process
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I: KNOW
II: STRATEGIZE
III: PARTNER
IV: COMMIT
V: SCHEDULE
VI: FOCUS
VII. REASON
VIII: AMPLIFY
IX: SIMPLIFY
X: DON’T PANIC

16. I: KNOW
Know the past. Know your project.
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• Know the past:
• Review prior environmental reviews by
similar type and location.
• Identify prior stakeholders and public
concerns and anticipate their interests in
new process.
• Identify what worked and what didn’t
….and why.
• Repeat what worked.
• Derive new solutions for what didn’t.
• Know your project:
• Craft a robust purpose and need.
• Flesh out your project description.
• Keep your project description stable.
• Share what you have learned with project
team and partners.

17. II: STRATEGIZE
Choose compliance path…wisely.
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• Identify the key environmental challenges.
• Develop solutions at the same time as project development, not after.
• Design the process to serve the project instead of the other way around.
• Examine all streamlining options first:
• Use of prior documents
• Categorical Exclusions
• Program tiering
• Combined documents
• Articulate Strategy
• Share with partners, agencies, and key stakeholders.
• Adapt strategy over time

18. III: PARTNER
Get everyone on board ...and keep them there.
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• An environmental process that works only for the lead agency will rarely
succeed and/or be efficient.
• Engage partner agencies, permitting agencies, key stakeholders concerning
environmental process early and often to know their needs.
• Recognize agency and stakeholder needs as equally essential to an efficient
and effective environmental process as those of the lead agency.
• Seek concurrence throughout the process:
• Purpose and Need
• Alternatives
• Study scope and methodologies
• Impact results and conclusions
• Mitigation

19. IV: COMMIT
Secure the commitment of the people you need.
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• Continuity is vital to a rapid environmental process
• Shorter project durations increase likelihood of staff retention
• Only establish schedule after securing staff commitments, not before
• Secure not only your own staff, but also from partnering/cooperating agencies.
• Local or State Lead Agency: Lead and Key Staff
• Federal Partner Agency: Lead and Key Staff
• Regulatory Agencies: Lead and Staff

20. V: SCHEDULE
Faster is more intense: plan for it, manage it.
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• A streamlined process *might* mean less overall work but *might* not
• It may only mean that more needs to be done in a shorter timeframe.
• “One Federal Decision” means earlier and more intense agency coordination.
• Schedule your agency’s work:
• …and those of partner agencies,
• …and those of permitting agencies,
• …and everyone else necessary to success.
• Manage critical path every day
• Adaptively manage schedule

21. VI: FOCUS
Select fewer but better alternatives.
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• Develop your project purpose and need statement with great care.
• What are you really trying to do?
• Invest upfront in alternative screening:
• Develop wide range of alternatives.
• Screen the wide range for:
• Meeting purpose and need
• Feasibility
• Variance in environmental impact
• Agency acceptability (early partnering)
• Community acceptability (early outreach)
• Select a small, but reasonable range of alternatives for the EA or EIS.
• Only need to analyze ‘reasonable” alternatives, which is generally
understood to mean those technically and economically feasible project
alternatives that would satisfy the primary objectives of the project defined
in the Purpose and Need.

22. VII: REASON
Live, eat, and breathe the “Rule of Reason”.
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• Don’t spend your time considering remote and speculative possibilities.
• Do take a “hard look” at environmental impacts.
• Do consider advice and expertise of cooperating agencies.
• Do use well-documented, widely accepted methodologies wherever possible.
• Proportion your level of effort to the level of impact – potentially significant
impacts should your primary focus.

23. VIII: AMPLIFY
Spend most of your time on what most people will read.
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• Executive Summary is the most important part of
the document.
• Decision-makers rarely look at anything else.
• Sets the tone for the entire document.
• Gives the reader a snapshot of everything
important.
• Overview is a critical part of each section
• Include upfront overview at the front of each
resource section.
• Impact conclusions are the most important part
of each section.
• Write them clearly and concisely.

24. IX: SIMPLIFY
Say what you mean once. Don’t repeat it.
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• Don’t repeat yourself
• Plan your document for unique content throughout.
• Repetition results in bloat.
• Repetition incurs risk of inconsistency.
• Reference other parts of the document.
• Use tables and graphics to help reader
• Data-rich presentation in table and graphics can communicate better
than text.
• Can help to express complex concepts simply.
• Don’t use text to repeat what a table or graphic already shows
• Put gory details in appendices and references.
• The technically inclined reader needs something special for them!
• But the average reader does not.

25. X: DON’T PANIC
Give litigation risk its proper due.
No more. No Less.
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• Federal courts usually defer to lead agencies IF:
• A hard look at environmental impacts was
provided.
• NEPA process requirements were followed.
• A reasonable range of alternatives was
considered.
• The agency showed its’ work.
• Good faith consideration of comments.
• Don’t let fear of litigation result in a bloated document.
• Focus on important issues and concerned raised
by agencies and public.