In several recent posts (linked below), I’ve been discussing environmental considerations in property development. For this post, consider a scenario where part of your proposed development is on land owned by a federal agency such as the National Park Service (NPS). Assuming you have the agency’s permission to use the land, an additional factor to consider is what environmental requirements the agency may have that impact your project. Specifically, federal agencies must comply with the National Environmental Policy Act (NEPA), which could add significant time to completion of the project.
NEPA (42 U.S.C. §§ 4321 et seq.) requires all federal agencies proposing to undertake a major action significantly affecting the quality of the human environment to prepare a detailed statement on the environmental impact of the proposed action, including any adverse environmental effects which cannot be avoided and identifying alternatives to the proposed action. “Major” has no significance here; all federal actions are subject to NEPA, including funding and permitting.
Depending on the significance of the environmental impact of the proposed action, various levels of documentation are required. The most involved is an Environmental Impact Statement (EIS), which generally takes 24-36 months to complete. For proposed actions anticipated to have no significant impact, or for which the impact can be mitigated, an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) are prepared. It generally takes 12-18 months to complete an EA.
In addition, NEPA gives federal agencies the option of undertaking rulemaking to develop Categorical Exclusions (CE). A CE describes a category or type of action that does not have the potential for significant environmental impacts. Some documentation may still be required depending on agency policy, but the level of effort is significantly less than what is required for an EA or EIS. Any project taking place on federal land should be evaluated against the applicable agency CEs, if any, to determine whether a CE may be appropriate or whether an EA or EIS – and the associated longer timeline – will be necessary.
Even if an action is determined to fit within a CE, the agency still needs to consider whether any extraordinary circumstances apply. “Extraordinary circumstances” are exceptions to an agency’s ability to use a CE; if any are present, then the action must be modified to avoid the extraordinary circumstance, or an EA or EIS must be prepared. Examples of extraordinary circumstances include actions which may have significant impacts on historic or cultural resources, wetlands, floodplains, national monuments, or migratory birds.
How the action is defined and what level of NEPA effort is required are decisions for the federal agency to make. Early discussion and coordination are essential, both to assist the agency with that determination, and to understand the agency’s decision and the requirements and associated timelines that it triggers.
Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at firstname.lastname@example.org or (503) 598-7070.
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