One of the most frustrating aspects of grant-funded projects for the public is that it takes years from the announcement that their neighborhood is covered by a grant until they see the new infrastructure. One of the reasons for these delays has been environmental studies that are mandatory when projects are funded by federal funds.
Environmental studies were first mandated for federal projects by the National Environmental Policy Act (NEPA) of 1969. This law required environmental studies for what was classified as a major federal action, which means any construction using federal funds, any construction built on federal land, or construction that requires a federal approval or permit. The type of proposed construction would trigger either an Environmental Assessment (EA) or an Environmental Impact Study (EIS). NEPA defined different kinds of activities that would require different types of assessment, with the two most common being impacts on the environment or on historic preservation.
On April 9, the Council on Environmental Quality issued a memorandum to all federal departments that suggests new guidelines for how to implement the NEPA laws. The issues covered in the memo haven’t been mandated by Congress, and don’t carry the force of law. However, it’s likely that most federal agencies will follow the new guidance.
The new guidance establishes what it calls categorical exclusions from the NEPA rules that would soften or eliminate the need for an environmental study if a project is not likely to “significantly affect the quality of the human environment”. It lists three types of categorical exclusions that can be considered:
- The first categorial exclusion would apply if construction is to occur in an area that was already covered by a previously completed environmental review that did not trigger a full environmental study. Agencies would need to examine the previous environmental review to see if this warrants an exclusion today.
- A federal agency can also look at other similar exclusions for environmental studies that have been granted in the past by the agency. If a new project is similar in nature to past cases where an environmental study wasn’t required, the agency can determine that a new review isn’t needed.
- Finally, the agency can rely on the experience and expertise of its staff or outside experts who are familiar with the proposed project to determine if a review is needed.
What does all of this mean in practical application for broadband projects? This might eliminate the need to conduct environmental studies for construction done in the public rights-of-way of roads. The vast majority of fiber construction occurs by burying fiber on the shoulder of roads, which have been excavated in the past during road construction, or hanging fiber on poles that are in the public rights-of-way. It’s always seemed absurd to industry folks that there are any environmental issues from construction close by existing roads, since those areas have probably seen construction multiple times in the past.
The new guidelines would not change the requirements for a project that proposes to build fiber across wetlands or other areas that have never seen past construction. It probably doesn’t make it easier to build close to historic sites. But the new guidelines could eliminate the time and paperwork involved in conducting the environmental review for a majority of federal grant-funded projects. And that is not small thing. Construction can’t begin with grant dollars until environmental reviews are complete. The reviews can take from a few weeks to many months, and if a full environmental study is indicated, a project can be delayed by a year or two.






