Guidance Issued on HUD Environmental Reviews
The White House Office of Management and Budget (OMB) and Council on Environmental Quality (CEQ) recently issued guidance for state, local and Indian tribal governments that accept responsibility for Department of Housing and Urban Development (HUD) environmental reviews under Executive Order 13807.
President Trump in August 2017 signed E.O. 13807, Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects, which requires federal agencies to process environmental review and authorization decisions for “major infrastructure projects” as “One Federal Decision.” “Major infrastructure projects” are defined as those projects that require multiple federal authorizations for which a lead agency has decided to prepare an environmental impact statement (EIS) for compliance with the National Environmental Protection Act (NEPA) (Pub. L. 91-190), as amended, and for which the project sponsor has identified reasonable availability of funds. Under the “One Federal Decision” approach, a lead federal agency is responsible for navigating the project through the federal environmental review and authorization process.
E.O. 13807 seeks to change the way the federal government processes environmental reviews and authorization decisions. “Inefficiencies in current infrastructure project decisions, including management of environmental reviews and permit decisions or authorizations, have delayed infrastructure investments, increased project costs and blocked the American people from enjoying improved infrastructure that would benefit our economy, society and environment,” E.O. 13807 states.
Among its provisions, the order states that the processing of environmental reviews and authorization decisions for new major infrastructure projects should be reduced to not more than an average of about two years, measured from publication of the notice of intent to prepare an EIS or other benchmark designated by OMB. Under the “One Federal Decision” process, involved federal agencies agree to a permitting timetable, and agencies record their individual decisions in a single record of decision, unless certain conditions specified in E.O. 13807 apply.
OMB now has issued guidance pertaining to environmental reviews for major projects administered by HUD. CEQ NEPA implementing regulations acknowledge HUD’s environmental review assumption authority, which defines “federal agency” under the One Federal Decision approach to include state and local governments and Indian tribes assuming NEPA responsibilities. Since 1974, Congress has expanded HUD’s authority to condition the release of federal funds to responsible entities on their assumption of the environmental review responsibilities in programs such as the Community Development Block Grant, HOME Investment Partnerships, Neighborhood Stabilization, Public Housing and Section 8 Voucher programs.
HUD regulation on environmental review responsibilities is provided in the Code of Federal Regulations at 24 C.F.R. Part 58. As part of the assumption of HUD’s duties, an officer with the state, local or tribal government accepting responsibility must certify its completion of HUD’s environmental review responsibilities, assume the status of federal official under NEPA and waive sovereign immunity before receiving HUD funds. “Under these authorities, a responsible entity is subject to the same procedural and substantive requirements that would apply if those responsibilities were carried out” by HUD, the guidance explains.
Responsible Entity Duties
According to the guidance, a responsible state, local or tribal entity acting as the lead federal agency should:
- seek to complete environmental reviews and authorization decisions for major infrastructure projects in not more than an average of two years;
- develop, in coordination with cooperating and participating federal agencies, a permitting timetable that is updated at least quarterly and includes milestones for applicable environmental reviews and authorizations;
- develop, in coordination with cooperating and participating federal agencies, a single EIS and coordinate a single record of decision, and seek to ensure that all necessary authorization decisions for the construction of the project are completed within 90 days of issuance of the record of decision; and
- seek to ensure that it has a process in place to elevate instances in which a permitting timetable milestone is missed or extended, or is anticipated to be missed or extended, to higher level officials for timely resolution, and that it follows such process.
Further, while the guidance states that responsible state, local and Indian tribal entities are not subject to OMB Memorandum M-18-25, which establishes the accountability system under E.O. 13807 to track federal agency performance in the processing of environmental reviews and authorization decisions, they are encouraged to track their performance and to take all practicable steps to ensure timely completion of environmental reviews and authorization decisions.
For More Information
The OMB/CEQ guidance is available at https://www.whitehouse.gov/wp-content/uploads/2019/06/M-19-20.pdf.