The Office of the Secretary of Transportation recently issued two policy memoranda with the goal of streamlining environmental impact reviews and permitting. While faster processing is an aspiration that all parties can agree on, any new measure will bring some bumps to work out. Here are the key changes coming down the line to help you prepare.
Interim policy on page limits for NEPA documents and focused analyses
This policy establishes page limits for all Department of Transportation (DOT) National Environmental Policy Act (NEPA) documents. For environmental impact statements (EIS), the text cannot exceed 150 pages. But, there are exceptions—the limit may increase to 300 pages for proposed actions of unusual scope or complexity.
A combined record of decision (ROD) is not considered part of the document for page limit purposes, nor are the executive summary, appendices, or any materials incorporated by reference. Information in the EIS that explains the cooperating agencies’ pending decisions—pursuant to their specific statutory authority and requirements—can also be excluded from the page count, given approval by the agency head.
For environmental assessments (EA), the text should not exceed 75 pages. EAs with a “mitigated finding of no significant impact” can go up to 150 pages. As with impact statements, the executive summary, appendices, or materials incorporated by reference are not included in the page limits for either type of EA.
The DOT page limit policy applies to environmental impact statements with notices of intent dated after August 23, 2019, and for environmental assessments initiated after August 23, 2019. Agency heads can approve requests to exceed the EA page limit, but requests to exceed the EIS page limit require consent from the DOT assistant secretary for policy.
Interestingly, there are no time constraints placed on any DOT EAs or EISs outside of the One Federal Decision (OFD). In contrast, the Department of Interior—under Secretarial Order 3355—places a 12-month time limit on EISs not subject to OFD and a 6-month deadline on all EAs.
Interim policy on One Federal Decision implementation
This policy, for the most part, repeats the provisions of the April 10th, 2018, Memorandum of Understanding Implementing One Federal Decision under Executive Order 13807 previously signed by the secretary of transportation.
Consequently, it conforms to the effective date of the OFD Memorandum of Understanding’s (MOU) EIS provisions. In other words, the changes cover environmental impact statements for major infrastructure projects with initial notices of intent published after August 15, 2017.
The policy clearly emphasizes the importance of NEPA streamlining to the affected agencies. And, in so doing, it should result in more regular and consistent agency application of the OFD MOU to DOT’s infrastructure projects.
The new policy also emphasizes that it applies not only to DOT agencies but also to state agencies with NEPA responsibilities under the Surface Transportation Project Delivery Program. When implementing the DOT MOU, these state agencies now have clear authority to:
- grant exceptions to the use of a single EIS or single ROD,
- extend the 90-day deadline for any authorization required, and
- terminate the coordinated development of an EIS.
While the preparation of more focused and timely NEPA documents is a widely accepted goal, it cannot be met by randomly eliminating analyses from documents. Our success in NEPA streamlining shows that the document preparation team must bring to the table strong communication skills, as well as a high level of knowledge and experience in both federal and state environmental compliance procedures—including their required environmental impact analyses.