Federal Government Releases Guidance to Streamline National Historic Preservation Act (NHPA) and National Environmental Policy Act (NEPA) Reviews
On March 5, 2013, the White House Council on Environmental Quality (“CEQ”) and the Advisory Council on Historic Preservation (“ACHP”) jointly published final guidance entitled “NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 Reviews.” The guidance is intended to provide practical advice on streamlining environmental reviews mandated by the 1966 National Historic Preservation Act (“NHPA”) and the 1970 National Environmental Policy Act (“NEPA”) to avoid unnecessary duplication and delay. Overall, the new guidance builds upon recent efforts to remedy problematic aspects of the NEPA process and reinforces several best practices to facilitate concurrent analysis of potential environmental and cultural impacts of projects with a federal nexus.
Both NHPA and NEPA are procedural statutes that require agencies to examine how a proposal may affect historic and cultural resources and to consider alternatives that would minimize such impacts. The implementing regulations of both statutes aim to foster coordination with other federal laws. See 40 CFR Parts 1500-1508; 36 CFR Part 800. Integration of NHPA and NEPA reviews not only saves project proponents and federal agencies valuable time and money, but also supports sound decision-making by encouraging a broad discussion of proposed actions’ effects on the human environment. This unified review reduces litigation risk by ensuring all legal requirements are met, enhancing comprehensive public engagement early in the process, avoiding inconsistent results, resolving any federal interagency or federal-state-tribal disputes, and promoting transparency and accountability in federal decision-making.
This new guidance document provides practical instructions on how to integrate the environmental review processes of the two statutes, focusing specifically on provisions added to Section 106 of the NHPA in 1999 that address “coordination” of NHPA Section 106 and NEPA reviews and alternately the “substitution” of NEPA reviews for the Section 106 process. Coordination encourages agencies to harmonize Section 106 activities with any steps taken pursuant to a NEPA review. Substitution authorizes agencies to use NEPA procedures and documentation (an Environmental Assessment and Finding of No Significant Impact, or an Environmental Impact Statement and Record of Decision) to simultaneously comply with Section 106, instead of the procedures outlined in the Section 106 regulations. The guidance details the standards agencies must meet for coordination and substitution, as well as timing and documentation considerations.
Specifically, the guidance identifies key principles for integrating NEPA and Section 106:
- Early integration of the two processes;
- Education of stakeholders about the benefits of integration;
- Development of a comprehensive planning schedule and tracking mechanism to keep the NEPA and Section 106 processes synchronized;
- Development of comprehensive communication plans that satisfy agency outreach and consultation requirements, maximize the opportunities for public involvement, minimize duplication of efforts, and identify whether coordination or substitution will be used;
- Use of NEPA documents to facilitate Section 106 consultation, and use of Section 106 to inform development and selection of alternatives in NEPA documents;
- Development of an integrated strategy to accomplish specialized studies to provide information and analysis required by both statutes; and
- Completion of Section 106 and the appropriate level of NEPA review before issuance of a final decision.
Many of the strategies identified in the guidance have been successfully employed by experienced counsel and agency staff in projects across the country. While not rising to the level of a formal regulation or announcing wholly new interpretations, strategies, or procedures for integrating NEPA and NHPA reviews, the guidance helpfully lends the endorsement of CEQ and ACHP to these best practices. Moreover, it broadly disseminates concrete tips, checklists, and other tools to agencies and interested parties to implement in ongoing and future individual projects.
A copy of the final guidance can be found here.