White House Seeks to Further Streamline Environmental Permits

In keeping with the Trump Administration’s efforts to streamline environmental permitting for large infrastructure projects, such as water supply reservoirs, roadways, and pipelines, the Council on Environmental Quality (“CEQ”) issued a pre-publication version of a rulemaking undertaking significant revisions to implementing regulations for the National Environmental Policy Act (“NEPA”) on January 9, 2020. 

NEPA was signed into law on January 1, 1970 by President Richard Nixon and is widely known as the first major Federal legislative effort incorporating environmental considerations into government decision-making. NEPA requires federal agencies to assess the environmental effects of proposals for major federal actions and make the information public before decisions are made.

Typically, large infrastructure projects can take up to 10 years to permit, as was almost the case for the North Texas Municipal Water District (“NTMWD”) Bois d’Arc Lake project whose Clean Water Act Section 404 permit application was submitted in June 2008.  A permit decision on the Bois d’Arc Lake project was not received until February 2018 following a drawn-out NEPA process.  In light of this lengthy process, and the burden it can place on applicants like NTMWD and their customers that desperately need additional water supplies, the Trump Administration has actively pursued streamlining of the environmental permitting process.

An overview of a few critical proposed revisions to the NEPA regulations that could vastly improve the efficiency of the NEPA process include, but are not limited to:

• simplifying the definition of environmental “effects” by clarifying that these effects must be reasonably foreseeable and have a reasonably close causal relationship to the proposed action;
• no longer requiring a cumulative effects analysis as part of the NEPA review;
• clarifying that agencies should use reliable existing information and resources and are not required to undertake new scientific and technical research to inform their analyses; and
• proposing a new definition for “reasonable alternatives” requiring reasonable alternatives to be technically and economically feasible and able to meet purpose and need for the proposed action.

The proposed rules will also set presumptive time limits for environmental impact statements and environmental assessments, at two years and one year, respectively. CEQ estimates that on average the NEPA process is 4.5 years for most applicants, but can extend much longer.

The pre-publication rules would also allow applicants and contractors to play a more significant role in providing requisite information, studies, and materials for the preparation of NEPA documents, subject to supervision by the NEPA lead agency.

Collectively, the pre-publication rule proposes revisions to NEPA implementing regulations that will further the efforts to streamline environmental permitting of significant infrastructure projects, including water supply projects, and reduce the regulatory burdens on applicants, which ultimately should reduce costs and allow projects to come online when needed.

The official version of the proposed rules will be in a forthcoming Federal Register publication, which will appear on the Government Printing Office’s website, https://www.govinfo.gov/app/collection/fr, and on https://regulations.gov in Docket No. CEQ-2019-0003.

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If you have any questions about this article or related matters, please contact Water Law attorney Sara R. Thornton at sthornton@lglawfirm.com or 512-322-5876.