Stimulus Funding: Expediting NEPA Compliance for “Shovel-Ready” Projects in California
May 20, 2009
Jennifer Hernandez - San Francisco
Nicholas William Targ - San Francisco
The American Recovery and Reinvestment Act of 2009 (Recovery Act) and other federal financial programs make stimulus funding available to many “shovel-ready” projects, but they also require compliance with the National Environmental Policy Act (NEPA). In California, NEPA compliance should not be an obstacle to funding. Shovel-ready projects can frequently achieve expedited NEPA compliance through use of Categorical Exclusions and focused Environmental Assessments. These projects can also rely on the information and analysis included in California Environmental Quality Act (CEQA) documents as the basis for satisfying NEPA requirements. Skillful use of these strategies can facilitate swift NEPA compliance and successful federal funding.
Specifically, we recommend use of the following NEPA compliance pathways for California shovel-ready projects:
- Categorical Exclusions (CEs). Certain projects and activities that do not involve significant impacts are excluded from NEPA review. It is important to emphasize that NEPA Categorical Exclusions are broader than the CEQA Categorical Exemptions. Examples of projects that may be eligible for NEPA CEs include, among others: (1) bridge, sidewalk, park and street rehabilitation/reconstruction; (2) energy efficient and other green retrofits; (3) rehabilitation/reconstruction of existing rail and bus buildings; (4) construction of bus shelters in commercial areas; (5) installation of low-water use landscaping; and (6) replacement of traffic signals and street lighting with energy efficient lighting technologies.
- Focused Environmental Assessment (EA)/Finding of No Significant Impacts (FONSI). Efficient use of completed CEQA documents can dramatically speed NEPA compliance for other projects. The federal agency that disburses federal funds is required to complete NEPA documentation for qualifying projects, but the President’s Council on Environmental Quality (CEQ) – the overarching federal agency charged with NEPA compliance across all federal agencies – recently issued an important guidance document encouraging the use of “Focused Environmental Assessments” along with “Findings of No Significant Impact” (EA/FONSI). Completed CEQA documents can be referred to, and briefly summarized in, an EA/FONSI to complete the NEPA process for these projects. This EA/FONSI compliance track should be available for most California projects eligible for federal funding, and both Negative Declarations and Environmental Impact Reports can be used as a basis for the EA/FONSI. CEQ has prepared guidance for conducting streamline EAs.
- Engage CEQ in the NEPA Compliance Process. CEQ staff can provide pragmatic NEPA compliance advice and resolve disagreements or conflicting policies if the NEPA process becomes delayed by the federal agency disbursing stimulus funding. Federal agency funding staff may be unfamiliar with NEPA and CEQA, and CEQ staff can help bridge that gap.
If skillfully used, these approaches can lead to timely NEPA compliance for most California shovel-ready projects.
For more information, contact:
California:
Nicholas Targ
415.743.6926
nicholas.targ@hklaw.com
Jennifer Hernandez
415.743.6927
jennifer.hernandez@hklaw.com
Washington, DC:
Richard Gold
202.457.7143
rich.gold@hklaw.com
Daniel C. Maldonado
202.419.2504
dan.maldanado@hklaw.com
Eve M. O’Toole
202.419.2505
eve.otoole@hklaw.com
toll free: 1.888.688.8500
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