Before breaking ground, most large infrastructure projects must receive many environmental approvals pursuant to many environmental laws administered by many different regulatory agencies and program offices. These projects generally do not qualify for efficient general permitting procedures and must obtain extremely costly and time-consuming individual permits, on a project-by-project basis.
The Construction Advocacy Fund financed the production of an AGC-produced flowchart that walks you through the environmental aspects that need to be considered at each stage of a project:
- BEGIN PLANNING [Grey Boxes – Top]: identify property, perform preliminary engineering and environmental site assessments and studies.
- NEPA PHASE [Red Sign – Top]: identify the project’s purpose and need, study environmental impacts and alternatives, conduct public/agency outreach, publish a final environmental impact statement (EIS), including mitigation plans. NEPA is an “umbrella” statute because other environmental laws, policies, executive orders, and guidance are considered as part of the review process [Red Arrows – Top].
- ENVIRONMENTAL PERMITTING [Gold Bar – Middle]: meet the specialized pre-construction requirements that apply to the project, each directed at a specific environmental medium or concern (i.e., air [Yellow Path], water [Blue Path], wildlife habitat [Green Path], cultural and aesthetic resources [Pink Path], waste and other aspects [Light Grey Path]. Dozens of federal statutes, and innumerable implementing regulations – that are ancillary to NEPA – apply to construction activities.
- DURING CONSTRUCTION: meet environmental commitments, permit terms and conditions, and other environmental requirements – e.g., maintain management plans, inspect, monitor, report, take corrective action, fulfill mitigation measures, manage waste streams, etc.
- OPERATIONS AND MAINTENANCE [Grey Footer]: occupy and operate or transfer property; perform required environmental follow-up – be aware of long-term legal risk and liability associated with the disposal and clean-up of hazardous substances.
Congress needs to address the staggering statutory and regulatory inefficiency that currently exists. The average time to complete one EIS, under the NEPA process, is five years and costs $6.6 million (Nat’l Assoc. of Environmental Professionals review, 2015). An individual Clean Water Act (CWA) Section 404 permit applicant spends 788 days and $271,596 to obtain coverage, on average (Rapanos v. United States, 2006). What is more, a six-year delay in starting construction on public projects costs the nation more than $3.7 trillion in lost employment/economic gain, inefficiency, and needless pollution (Common Good report, 2015).
The current practice of performing sequential and often duplicative environmental reviews, following the NEPA record of decision, is presenting massive schedule, budget, and legal hurdles to project delivery. Project proponents are being forced to repeat: analyses and studies; mitigation and management planning; as well as interrelated “authorizations” (i.e., certifications, consultations, consistency determinations, etc.) – all before they can submit their permit applications and receive the necessary approvals to proceed with construction. Legal challenges to environmental documentation and permitting procedures are root causes for delays on infrastructure projects.
AGC Recommended Reforms
Both Congress and the White House have turned to AGC for common-sense recommendations on streamlining the federal environmental review and permitting processes. In part, AGC has recommended the following:
- The NEPA review and the regulatory permitting processes must be coordinated, and advanced concurrently, and not sequentially. There must be timelines and deadlines for completing the environmental approvals needed for infrastructure work. Specifically, AGC supports a nationwide merger of the NEPA and CWA 404 permitting processes, with the U.S. Army Corps of Engineers (Corps) issuing a 404 permit at the end of the NEPA review, based on the information generated by NEPA process. Data show these processes take the longest, are the costliest, and are subject to the most disagreements (see above).
- To reduce duplication, the monitoring, mitigation and other environmental planning work performed during the NEPA review must satisfy federal environmental permitting requirements, unless there is a material change in the project.
- A reasonable and measured approach to citizen suit reform to prevent misuse of environmental laws.
Download the flowchart.