Presidential efforts to accelerate stalled projects didn't originate with Obama, however. In 2002, President George W. Bush signed an executive order to accelerate high-priority projects. The Obama administration has built on those initiatives, creating an online "Dashboard" that lists top-priority projects and the status of each. John Porcari, deputy secretary of transportation during Obama's first term and part of the second, says, "I saw [Dashboard] as an opportunity to help re-engineer the NEPA process" by identifying pilot projects for concurrent reviews and collaboration and "empowering people in the industry."
Having a rapid-response team for federal permits is "not rocket science, but it is an exception to the current rule," says Porcari, now a Parsons Brinckerhoff senior vice president. "The whole point is to use this as a first step not only to get these specific projects approved but to improve the process [itself]. The goal is to make this the norm, not the exception."
Environmental advocates are waging a bitter battle against this streamlining groundswell. "The entire goal of the [WRDA] streamlining provisions seems to be just pushing the reviews through, when in fact what should be happening is that the reviews should be done very carefully so that decision-makers and the public understand what the impacts of the projects are actually going to be before they are constructed," says Melissa Samet, senior water-resources counsel at the National Wildlife Federation.
Michael B. Gerrard, a Columbia Law School professor and director of Columbia's Center for Climate Change Law, says NEPA gives the government a systematic way to identify adverse impacts, consider measures to mitigate them and provide alternatives. "The NEPA process is often blamed for project delays that really stem from other causes, [such as] delays in completing design of a project or of obtaining the financing, technology or real estate for the project—these are the major causes of delays," Gerrard says.
Samet contends the pending WRDAs take the wrong approach to the problem of lengthy reviews. She cites the Yazoo flood-control project in Mississippi as an example of the Corps of Engineers' vastly underestimating a project's impact on wetlands. EPA nixed the project during the George W. Bush administration.
"Yes, it did take some time to go through [the review] process, but, without that, the project would have been built [and] 200,000 acres of wetlands could have been drained and damaged, for no benefit whatsoever," Samet says.
She says that, rather than concentrating on expediting reviews, lawmakers should focus more on how the Corps conducts its studies.
However, industry observers point to cases in which project opponents have used the NEPA process to hijack projects they don't want to see built, "not so much because they are concerned about the environmental impacts but, really, because they oppose the project," says John Doyle, special counsel at Washington, D.C.-based Jones Walker and a former acting assistant secretary of the Army for civil works. He cites as a prime example the Inner Harbor Navigation lock replacement in New Orleans, originally authorized in 1957 but still unbuilt.
A Corps spokesman says the Corps has taken steps under several federal initiatives to improve interagency coordination. The Corps also is taking a "3-by-3-by-3" approach to its feasibility studies in which it can take no more than three years, $3 million in cost and three levels of reviews.
Even if the new WRDA ends up with many streamlining sections, Doyle says, "I don't believe the world is going to change substantially as a result of these provisions." But he adds, "I do believe they will, overall, improve the process some and move it in the right direction."
In many ways, the potential changes in WRDA echo streamlining provisions contained in the latest highway-transit law, the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21). Early this year, the Dept. of Transportation issued regulations codifying two of MAP-21's new "categorical exclusions" from NEPA: projects within an existing right-of-way and projects in which there is a minimal federal investment.
Brian Deery, senior director of the Associated General Contractors of America's highway and transportation division, says that while public attention often centers on megaprojects, "a lot of these run-of-the-mill, everyday projects get tied up in this process as well, and these categorical exclusions will allow them to go through a much more expedited review process." MAP-21 also shaved the lawsuit time limit to 150 days from 180.