Congress cleared significant reforms to the National Environmental Policy Act (NEPA) that seek to streamline permitting approvals as part of an agreement to raise the debt ceiling.
With recent enactment of several infrastructure funding laws including the Infrastructure Investment and Jobs Act, the Inflation Reduction Act, and the CHIPS and Science Act, there was broad bipartisan recognition of the need for reforms in federal environmental review and permitting processes to deliver projects funded by these programs.
The Fiscal Responsibility Act includes provisions to expand the use of categorical exclusions; provide for one-year deadlines for environmental assessments and two years for environmental impact statements; permit the use of private resources to accelerate reviews; and codify the One Federal Decision program to better coordinate reviews among multiple agencies. The reforms also will narrow agency considerations to reasonably foreseeable adverse environmental effects and a reasonable range of alternatives to the proposed action that are technically and economically feasible, while meeting the purpose and need of the proposed action.
The new law also includes a technology study provision (E-NEPA) specifically advocated by ACEC, directing the federal Council on Environmental Quality to explore and report examples of a unified portal to track NEPA reviews, streamline government processes for analyses of major projects, and advance public access.
The Council on Environmental Quality is expected to issue new regulations and guidance. ACEC will continue to engage in the regulatory process and continue to advocate with key congressional committees on additional legislation to modernize environmental reviews, including judicial reforms, changes to Clean Water Act permitting, and the permitting of interstate transmission lines.
A key Senate committee has said the Federal Highway Administration (FHWA) should work to promote a more consistent approach by state departments of transportation (DOTs) and reduce burdens on A/E firms when implementing the credits requirement for forgiven Paycheck Protection Program loans. The provision was included in the Senate Appropriations Committee’s report on the annual funding bill for transportation, housing, and urban development programs for fiscal year 2024.
“The Committee is aware of concerns that the FHWA has released guidance explaining that consultants providing architectural and engineering [A&E] services under federal-aid or federal lands highway program funded contracts that have received Paycheck Protection Program (PPP) loans must provide a refund or a reduction in billing rates in the amount of forgiven PPP loans that are allocable to contract costs,” the report states. “The Committee … is aware that there is a lack of uniformity in how State DOTs are implementing this guidance and enforcing the Federal Acquisition Regulation [FAR] credits clause with respect to forgiven PPP loans. The FHWA should help ensure that A&E consultants, including small and disadvantaged businesses, do not face unreasonable compliance burdens, as permissible under current law.”
While efforts continue to determine if a broader repeal or waiver can advance in the Senate, the Council is working with ACEC Member Organizations and the FHWA to promote more consistency and align state policies with guidance developed by a working group of state DOTs and affiliate CPAs with expertise in the FAR.
For legislative news, visit ACEC’s Last Word blog online at www.acec.org.