Everything Old is New Again

In July 2020, the President’s Council on Environmental Quality published in the Federal Register a final rule modernizing the implementing regulations of the National Environmental Policy Act (NEPA). This fundamentally renovated and modernized these regulations for the first time in 42 years.

The NEPA changes look to streamline what has generally become an overly onerous process over the last 50 years.

Per the new regulations (which have themselves shrunk from 30 to 20 pages and are now better organized and more concise), Department of Defense branches have until Sept. 14, 2021 to publish updated agency-specific draft NEPA implementing regulations that comport with, and are no stricter than, these final regulations.

As such, the industry will soon be seeing updates to 32 CFR 651 (U.S. Army), 32 CFR 775 (U.S. Navy), and 32 CFR 989 (U.S. Air Force) that streamline NEPA processes. For practitioners involved in NEPA, this is a big thing. A really big thing.

A STREAMLINED PROCESS

So what’s new? Well, in short: “everything old is new again.” The regulations generally seek to clarify what was intended when NEPA was signed into law on Jan. 1, 1970 and in the original implementing requirements that were finalized in 1978. In those generally simpler regulatory times, the spirit and intent of NEPA was to include environmental considerations into each federal agency’s decision-making process, engage the public in that process, and strive to implement projects that minimized environmental damage.

That establishing mission remains the core of NEPA. However, for many practitioners working in this space, not much has changed for the better since the act’s signing. Over the years, prepared written documents have grown increasingly long, stakeholder meetings continue to be held in public venues, and notices are still being published mostly in newspapers. With time and increased litigation, NEPA documents and processes have grown in duration, volume, and complexity.

The new regulations look to streamline the NEPA process and return it to its original intent. Gone, for example, are the separation of direct and indirect effects and speculative cumulative impacts analyses. Practitioners are now asked to just address potential effects. Presumptive page and time limits will also be enforced. These key changes will likely mean several fundamental deviations from what has been the status quo for some time, of which practitioners should be clearly aware.

• A need to complete documents quicker, and with less paper.
• Using cost and technical criteria to narrow “reasonable” alternatives.
• Expediting internal agency reviews and working more collaboratively and efficiently with other involved federal agencies.
• Conducting more focused NEPA analyses.
• Using more categorical exclusions, including being allowed to use other federal agencies’ categorical exclusions, and using the regulatory permitting review and approval processes to remedy “extraordinary circumstances”—such as impacts to wetlands, cultural resources, and endangered species—to avoid completing Environmental Assessments or Environmental Impact Statements (EISs).
• Substantially increasing the amount of early “internal and external scoping” performed to narrow the focus of environmental reviews and determine environmental issues that are relevant and important, as well as those that are not.
• Using agency websites to post NEPA data consistently and share data more broadly.
• Relying more on innovative technologies to further streamline the NEPA process, including using electronic media to obtain public input and supplement or even replace hard copies.

LEVERAGING TECHNOLOGY

The revised regulations seek to return us to NEPA basics. In doing so, they open the door to using modern technologies to help get there. Specifically, the new regulations encourage NEPA notices and public meetings to make use of electronic media and require the ability for electronic public commenting. They also direct government to maximize the use of websites to increase access to NEPA information.

These directions provide one of the greatest opportunities to use modern technology to truly streamline the NEPA process, make information more readily accessible, and achieve the original spirit and intent of the act. To that end, two technologies have been pioneered that leverage these desired outcomes and will benefit both agencies and communities: digital NEPA documents and virtual stakeholder engagement platforms.

Working with the Department of the Treasury and the Baltimore District of the U.S. Army Corps of Engineers, AECOM prepared the first-ever U.S. digital EIS for a proposed replacement currency production facility in Maryland. Making maximum use of visual imagery (including drone data capture, innovative still and video conceptual renderings, and comprehensive photos of relevant environmental amenities), coupled with interactive links to informative websites and additional detailed studies, the digital Draft EIS was published for a 45-day public review period in November 2020. This website-based EIS allows stakeholders to navigate the “document” and obtain and review data at the depth they desire, whether that is deeply or limited.

A traditional written EIS to accompany the digital version also was produced, ensuring all stakeholders, notably those without internet access, could review and provide input. This written EIS was clear and concise, totaling 160 pages from cover to cover.

The digital EIS not only improved the public’s engagement, but also sped up the government’s internal review and approval processes. Through it, government reviewers could quickly access, evaluate, and comment on internal draft materials. By using this innovative technology, the NEPA process will be completed within 24 months—including the conduct of associated comprehensive environmental baseline studies on traffic, wetlands, and forest and cultural resources.

This same project in the National Capital Region also made use of a website-based virtual stakeholder engagement platform to conduct the 45-day public review of the Draft EIS. The public meeting was conducted virtually due to the coronavirus pandemic as well. The website replicates what a stakeholder would experience if they attended a traditional public meeting, with posters, fact sheets, documents, and other related material. Even better, the “room” is available for the entire 45-day period, instead of just a few hours on a pre-determined date. This allows stakeholders to engage with the information from any internet-enabled device, and for any duration they desire.

With an incorporated comment station, stakeholders can leave feedback on the site, download the comment form and email it, or print and mail their comments. Of course, to ensure stakeholders without internet access are not precluded from involvement, traditional methods of sharing information are used as well.

RETURNING TO BASICS

Virtual stakeholder meeting technology was used on more than 30 projects in the United States during 2020, including projects for the military. With the new NEPA regulations encouraging greater use of modern technology to streamline the environmental review process, further adoption is expected.

These new digital tools will continue to evolve, improving access to information and better accommodating public engagement. In this way, they will support the push to return to NEPA basics and achieve the informed decisions and better environmental outcomes that were originally envisioned when the law was first enacted in 1970—only faster, better, and more efficiently.

Brian Boose, CEP, M.SAME, is Vice President, National U.S. Federal Impact Assessment and Permitting Leader, and Jennifer Warf, M.SAME, is Associate Vice President, National DOD Impact Assessment and Permitting Leader, AECOM. They can be reached at brian.boose@aecom.com; and jennifer.warf@aecom.com.

[This article first published in the January-February 2021 issue of The Military Engineer.]