By Brian Boose, CEP, M.SAME, Jennifer Warf, Ross Stewart, CEnv, and Brent Widener
It is a four-letter word to most decision-makers within the Department of Defense (DOD). But this simple, 3,188-word law written when Apollo 11 set down was never intended to be an onerous, action-stopping litigation tool. How did the National Environmental Policy Act of 1969 (NEPA) evolve into such a convoluted process that often delays action, weighs down desks, and creates division rather than collaboration?
Compliance with NEPA is a process, administered in accordance with the Administrative Procedure Act of 1946. It ensures that DOD consider potential environmental damage caused by its decisions and, where possible, take steps to mitigate that damage. As further described in the Council on Environmental Quality NEPA Regulation of 1978, which is currently under revision, the law requires three items: inform the decision-maker of potential environmental consequences of their decision before taking action; inform and engage the public; and document the process.
NEPA does not require DOD to choose the most environmentally beneficial course of action. It only requires DOD to be aware of potential environmental consequences and measures that could mitigate impacts. While there are many underlying NEPA requirements, this is the core. Additionally, DOD cannot violate federal law and must conduct appropriate level NEPA analysis.
INTENT TO PROTECT
As required under NEPA Section 102(c), DOD must develop an Environmental Impact Statement (EIS) for “major federal actions significantly affecting the quality of the human environment” identifying impacts, unavoidable adverse effects, action alternatives, the relationship between short-term uses and long-term productivity, and “irreversible and irretrievable commitments of resources.” DOD must also consult with and obtain input from the public; from federal, state, and local agencies; and from the Council on Environmental Quality.
Over the last 50 years, much has changed surrounding NEPA: the number of lawsuits; the enactment of additional, often redundant, environmental regulations; duplicative agency review cycles; lengthy internal reviews; and “kitchen sink” analyses. Similarly, some practices have stayed the same, even if thanks to technology, they no longer need to be done that way: we still document the process on paper, publish notices in newspapers, and hold meetings in public buildings.
The combined result is the antithesis of the law’s origins—generally long, expensive, time-consuming documents that few read or understand, or that inform decision-making.
Initiatives to streamline NEPA are not new. Various directives have emerged since 1978, when the Council on Environmental Quality instructed parties to prepare concise documents, foster better informed decisions, and promote excellent action. NEPA is intended to allow public officials to make informed decisions, understand potential environmental consequences, and protect the environment where possible.
More recently, since the American Recovery and Reinvestment Act of 2009, the number of federal NEPA streamlining directives has increased substantially. However, a report issued by the Council on Environmental Quality in December 2018 identified that of 1,161 Final EISs with a Notice of Availability published between 2010 and 2017, the average completion time was 4.5 years. DOD was among the longest at almost five years. By any account, EISs take too long.
How do we reverse course and return to original NEPA objectives? Since 2015, AECOM has implemented methods that reduce cost, time, and document girth. These have been tested on over 40 Draft and Final EISs that the company prepares each year for military and civilian federal agencies.
However, a report issued by the Council on Environmental Quality in December 2018 identified that of 1,161 Final EISs with a Notice of Availability published between 2010 and 2017, the average completion time was 4.5 years. DOD was among the longest at almost five years. By any account, EISs take too long.
- Maintain a unified team. Throughout the entire process, work seamlessly toward a common objective.
- Marry engineering and environmental professionals. Ensure close coordination between NEPA and design teams, such as by using a project intranet site; integrate NEPA considerations into alternative development/design; and use “mitigation by design” to minimize adverse effects.
- Cut long poles. Maximize the use of available, high-quality data and conduct time-sensitive field investigations early to identify and mitigate issues.
- Use public involvement as a tool. Implement a robust public involvement program such as a project website to identify, integrate, and address public concerns early.
- Engage regulatory agencies. Coordinate with external stakeholders early, extensively, and continuously to address environmental issues and concerns.
- Hard schedule. Adhere to and drive an aggressive schedule for all stakeholders; hold participants accountable.
- Focus and brevity. Focus on issues “significant to the action,” dismiss irrelevant issues, and avoid lengthy discussions and over-explanations.
SHORTENING THE TIMELINE
Fort Benning, Ga., which supports more than 120,000 people on a daily basis and is home to the U.S. Army’s Maneuver Center of Excellence, is a NEPA streamlining success story. For any proposed action, the installation’s first step is to determine the appropriate NEPA level. Proponents must submit a Request for Environmental Analysis, known as a FB144R, for projects possibly impacting the environment. The FB144R is submitted online, allowing proponents to enter specific information and enabling timely review by Fort Benning’s Environmental Management Division.
The FB144R system allows most project approvals in under 21 days, ultimately producing a Record of Environmental Consideration. A digital library of historical records facilitates even swifter approval of similar subsequent actions.
Prior to these 2008-initiated online solutions, most approvals required from 45 to over 60 days. Fort Benning has reduced preparation times to under 12 months for environmental assessments and 24 months for EISs. It also is pursuing cloud-based programs and data storage solutions that, coupled with artificial intelligence, will further streamline and link/track the installation’s activities in conjunction with the NEPA process.
AECOM is currently assisting Fort Benning in preparing a 24-month EIS for a complex maneuver action.
Digital NEPA is an integration of state-of-the-art analytical, visualization, and information conveyance tools. Being developed by AECOM, the process eliminates cumbersome documents, outdated public engagement techniques, and slow data transmittal processes in favor of web-based solutions, drone data gathering, 3D imagery, and advanced data analytics that clearly show what the alternatives, environmental conditions, potential effects, and available mitigation measures are.
AECOM’s first-generation Digital Environmental Impact Analysis launched on a critical project near historic Stonehenge in England. Combining reports, spatial data, and visualizations, the analysis integrated over 250 documents and 7,000 pages in an interactive public platform. Importing this technology and AECOM’s proprietary, purpose-built software, the first digital EIS is now under development in partnership with the Baltimore District of the U.S. Army Corps of Engineers for a proposed new U.S. Treasury facility in Maryland. Using current, drone-captured, and field-verified environmental data as a base, alternatives are overlaid, potential environmental effects quantified, and mitigation solutions identified. The end result is a publicly accessible website displaying critical information in a visual, 3D, and navigable space.
This step forward moves us back to NEPA’s beginning. Through technology, we can improve stakeholder engagement. We can hot-link regulatory requirements. We can focus on and clearly convey “issues significant to the action” with digital analyses and show alternatives and impacts in virtually real time. This reduces document length, time, and costs; better informs decision-makers and engages stakeholders; and “documents” the process. NEPA objectives achieved.
Brian Boose, CEP, M.SAME, is Associate Vice President, National U.S. Federal Impact Assessment and Permitting Leader, Jennifer Warf is Associate Vice President, National DOD Impact Assessment and Permitting Leader, and Ross Stewart, CEnv, is Principle, Impact Assessment, Digital Environmental Assessment Leader, AECOM. They can be reached at firstname.lastname@example.org; email@example.com; and firstname.lastname@example.org.
Brent Widener is Chief, Planning and Support Branch, Environmental Management Division, Directorate of Public Works, Fort Benning, Ga.; email@example.com.
[This article first published in the January-February 2020 issue of The Military Engineer.]