Certain water resources projects will be eligible to benefit from expedited federal National Environmental Policy Act (NEPA) reviews under legislation signed into law in December.
The NEPA reforms were tucked into H.R. 22, the “Fixing America’s Surface Transportation (FAST) Act,” legislation enacted last month to provide federal funding for highway and transit projects. This was the same bill that included a sought-after reform to the Water Infrastructure Finance and Innovation Act (WIFIA) pilot program to allow communities to finance water infrastructure projects through a combination of WIFIA loan proceeds and tax-exempt debt.
Title XLI of the bill includes reforms to the NEPA review process for certain large-scale “covered projects” that involve “construction of infrastructure for renewable or conventional energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines, [or] manufacturing.” Eligible covered projects are entitled to have their NEPA reviews carried out in accordance with timetables and best practices established by a new Federal Infrastructure Permitting Improvement Steering Council that will be composed of designees from various federal agencies. The legislation also requires all lawsuits seeking a judicial review of a covered project to be filed within two years of the initial Federal Register notice approving or denying a permit, by a party that submitted a comment during the environmental review period.
While Title XLI offers opportunities to speed the federal environmental reviews of water resource projects, the new law includes limits as well. First, the expedited reviews only apply to a covered project that is subject to NEPA, “likely to require a total investment of more than $200,000,000,” and which does not qualify for a shortened environmental review under any other law. Title XLI specifically bars water resource projects carried out by the U.S. Army Corps of Engineers from receiving expedited NEPA reviews, as those projects are already subject to an accelerated review process implemented under the Water Resources Reform Development Act of 2014.
The new law sunsets the expedited reviews after seven years, though Congress would have the option to extend it prior to that point. The law also calls for a Government Accountability Office (GAO) report to be delivered by 2018 that analyzes whether permitted reforms included in the bill “could be adapted to streamline the Federal permitting process for smaller projects” costing less than $200 million.