For the first time in over 40 years, the White House has comprehensively updated its National Environmental Policy Act regulations. The regulations were finalized earlier this month and will help modernize the federal environmental review process, which will improve Western water resource development and management.
The often slow and cumbersome federal regulatory process is a major obstacle to realization of projects and actions that could enhance Western water supplies. NEPA implementation can have a direct bearing on the success or failure of critical water supply enhancement projects. Many Western water managers often use NEPA mechanisms, like categorical exclusions (CEs) — and in conjunction with annual operations and maintenance activities on ditches, or major rehabilitation and repair projects on existing dams.
When appropriately established and applied, CEs serve a beneficial purpose. They allow federal agencies to expedite the environmental review process for proposals that typically do not require more resource-intensive environmental documentation.
Applying for a new CE, for example, can potentially ease the Federal Energy Regulatory Commission permitting requirements for irrigators who want to install small hydroelectric projects in existing canals and ditches. These projects have minimal environmental impacts and offer opportunities to create new, clean, renewable sources of energy.
Busy in court
Unfortunately, there are activist groups who use NEPA to delay and/or block efforts of some Western water users to perform the most routine, yet essential, actions. In fact, NEPA is the most litigated environmental law in the country. Litigious environmental lawyers and their sophisticated public outreach operations are the ones who will get plenty of media coverage in the coming days, trying to paint a picture of “doom and gloom” and looming environmental catastrophe because of this latest action by the Trump administration.
NEPA implementation and related litigation can be lengthy, and can significantly delay major infrastructure and other projects. The federal government currently averages over four-and-a-half years to complete an environmental impact statement, which average over 600 pages. In many cases, it can take a decade or more before permits are issued and construction can even begin. After a project is approved, it can be tied up in litigation for years over alleged deficiencies in the NEPA analysis.
It took five years to build Hoover Dam during the Great Depression — less time than we currently spend on the NEPA process.
Under the new regulations, environmental reviews for major infrastructure projects would be completed in two years. Actions without significant environmental impacts would either be categorically excluded or reviewed in under one year. The new regs also improve coordination, clarify when NEPA applies and reduce unnecessary paperwork by setting page limits. They will also (hopefully) reduce frivolous litigation.
Don’t be fooled by the headlines and intonations of litigious activists who make their living in federal courtrooms. The new NEPA regulation is just one of several proactive rule-making efforts undertaken by the Trump administration, in part intended to correct and rebalance the significant negative impacts to Western farmers and ranchers that have resulted from past federal implementation of environmental laws.
Keppen is executive director of the Family Farm Alliance.