By: Pam Nehring

Projects that require an Environmental Impact Statement under the National Environmental Policy Act (NEPA) may involve multiple federal agencies, each with a different scope of review and permitting time frame.  The review process is often onerous and time consuming adding unpredictability and added cost to the project.  The One Federal Decision policy articulated in Executive Order 13807 calls for federal agencies to streamline the environmental permitting process for major infrastructure projects.  Federal agencies have recently taken concrete steps to help make that policy a reality.

The Council on Environmental Quality and the Office of Management and Budget established a framework for implementing the One Federal Decision policy with a Memorandum of Understanding (MOU) among key federal agencies responsible for permitting major infrastructure projects.  Effective April 10, 2018, the MOU calls for completion of the environmental review in a single Record of Decision within no more than two years from the date of the Notice of Intent to prepare the Environmental Impact Statement.

The MOU outlines a process to determine the Lead Agency, which, in coordination with other federal agencies, sets a permitting schedule with identifiable project milestones at the outset (Permitting Timetable).   The Lead Agency is also to coordinate with state, tribal and local agencies.  The Permitting Timetable will be updated, and as necessary modified, at least quarterly.  Federal agencies commit to adhering to the schedule “to the maximum extent practicable and permitted by law.”  A copy of the Permitting Timetable will be publically available online on the Federal Permitting Dashboard platform.

The federal agencies involved in the NEPA review are to conduct their respective reviews concurrently.  The agencies are tasked with active communication and consultation early in the permitting process, and with identifying obstacles and potential solutions.  If there is a dispute among the federal agencies, the MOU provides a framework and timeline to resolve them.

So far, twelve federal agencies have signed the MOU, including the Environmental Protection Agency, Army Corps of Engineers, Advisory Council on Historic Preservation, Department of Agriculture, Department of Commerce, Department of Energy, Department of Homeland Security, Department of Housing and Urban Development, Department of Interior, Department of Transportation, Federal Energy Regulatory Commission and the Federal Permitting Improvement Steering Council.

The next step is for each federal agency, within 90 days, to prepare and submit plans to facilitate the efficient implementation of the One Federal Decision policy.  The MOU acknowledges that funding, personnel and other priorities may affect the federal agencies’ ability to implement all aspects of the MOU.  In addition, the MOU is not enforceable and no legal rights or benefits are created by its terms.  Nevertheless, measures to streamline the NEPA permitting process are welcome.

Pam Nehring is an experienced environmental attorney whose practice includes environmental permitting, NEPA compliance, brownfields development, remediation claims and litigation. For more information contact Pam Nehring at Daley Mohan Groble, P.C:
T: 312-422-5876