How The NEPA Rollback Will Impact Water And Wastewater Industries
By Christian Bonawandt
At the beginning of the year, the White House finalized plans to roll back rules under the National Environmental Policy Act (NEPA), narrowing its focus and limiting what the current administration claims are needless delays for federal approval of water, energy, and other infrastructure plans. For water and wastewater utilities, the changes could speed up permitting for critical projects, although experts warn the tradeoffs could do more harm than good.
What Is NEPA?
Enacted in 1970, NEPA is often referred to as the “Magna Carta” of environmental laws. It establishes procedures for federal agencies to assess the environmental, social, and economic impacts of their proposed actions. For water and wastewater utilities, NEPA requires demonstrating that potential impacts have been considered and that “reasonable alternatives” have been evaluated. Most of the time, these hurdles must be cleared before receiving federal funding, particularly through State Revolving Funds (SRFs), grants programs, and more.
In some cases, such as building or expanding a new drinking water or wastewater treatment plant (WWTP), obtaining funding and permitting may require years of research. NEPA reviews can incorporate proof of adherence to multiple federal requirements, such the Endangered Species Act, National Historic Preservation Acts, and the Clean Air Act.
What Changed?
According to Katherine Scarlett, who leads the White House Council of Environmental Quality, which oversees NEPA, the rollback will “restore common sense to the environmental review and permitting process.” In practice, this means shorter study timeline: Environmental Impact Statements will be subject to a two-year maximum timeline and Environmental Assessments will have a one-year limit. Page limits of 300 pages for Environmental Impact Statements and 150 pages for Environmental Assessments will also apply. In addition, the new guidelines encourage federal agencies to expand their list of Categorical Exclusions — projects that do not require extensive review to receive funds and/or permits.
The Upshot For Utilities
The focus is clearly on getting projects funded and started more quickly, which, on its face, is good for utilities. For example, to expand a wastewater facility, project managers no longer need to submit reports on cumulative or indirect impacts, such as how the combination of increased effluent and urban runoff would affect oxygen levels in a river five years from now. Instead, utilities need only account for the direct impacts on current nutrient levels and similar effects. In addition, rather than studying a reasonable range of ways to achieve a goal — which often includes solutions well outside of the project’s budget — utilities now need to evaluate only those that are “technically and economically feasible.”
What Could Go Wrong?
According to environmental legal experts, one of the biggest potential hurdles created by the NEPA rollback is an increase in litigation against projects. This is ironic, given that the new rules attempt to mitigate this risk by shortening the statute of limitations for legal filings to just 150 days. “The old CEQ NEPA regulations provided a detailed set of steps for agencies to follow,” said Michael Drysdale, a leading environmental law expert from Dorsey & Whitney. “Following these steps took time and resources, but they also provided agencies with strong legal defenses. In the absence of the CEQ NEPA regulations, agencies have less guidance and may be more subject to judicial second-guessing.”
Emily J. Lovell, associate attorney at Somach, Simmons, and Dunn, recently wrote that while challenges in federal court may be limited, projects still “face litigation risk at the state level, and under statutes that, unlike NEPA, impose substantive constraints on development decisions.”
In addition, Drysdale noted that rapid pace of approvals could negatively affect project design. “Agencies will certainly be able to make decisions more quickly with the rescission of the rules — and have been doing so under interim rule,” he said. “But it remains to be seen whether speedier agency decisions result in better or more reliable implementation of projects.”
A major factor is that projects are no longer have to consider effects that are “remote in time and geography.” In practical terms, effluent load impacts on a watershed 50 miles downstream may not need to be calculated and factored in. Similarly, climate change-related impacts may be deemed irrelevant because they involve effects years into the future.
As a result, project designs may fail to account for changing environmental conditions, such as changing floodplains, reduced levels in source water or discharge waters, or rising sea levels. This can lead to less resilient projects that are more vulnerable to risks and unforeseen costs.
All of this, of course, assumes that the new rule holds up to judicial scrutiny. “Several federal agencies had rescinded their own agency-specific NEPA regulations in response to the interim final rule, and these actions were recently challenged,” Drysdale noted. “The plaintiffs claim that the rule rescissions violate the NEPA statute by severely reducing public participation opportunities. One can expect that similar challenges will be filed against the now final CEQ NEPA rule.”
Christian Bonawandt is an industrial content writer for Water Online. He has been writing about B2B technology and industrial processes for 24 years.