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Guidance on EIS Review and Recovery Act Loan Guarantee Applications

June 8, 2010 - 2:22pm

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DOE must complete NEPA review before it may provide financial assistance in the form of loan guarantees.  Projects seeking such assistance under Section 1705 of Title XVII of the Energy Policy Act of 2005, 22 U.S.C. 16511-16514, must commence construction no later than September 30, 2011. Because many of DOE’s Environmental Impact Statements (EISs) take 18-24 months to complete, the Department has previously notified applicants that DOE, "will be unlikely to complete the NEPA process" for a project requiring an EIS in sufficient time to make an award. This statement has led to questions whether there are any circumstances under which DOE may be able to expedite EIS preparation.

DOE wishes to clarify that, while completion of an EIS in time for a project to commence construction by September 30, 2011, is a challenging enterprise, it may be feasible under certain conditions.  Projects will not be rejected because an EIS is required if it appears that DOE can expedite the process so as to allow Recovery Act deadlines to be met.

For DOE to be able to expedite the NEPA process sufficiently to meet Recovery Act deadlines, much of the required data and analysis must be already available. For instance, some states have environmental review processes analogous to NEPA.  A project well along in such a process may have provided sufficient data to the state to allow DOE to complete its own review in an expedited manner.   This will depend on such  factors as the completeness of the available information and the maturity of the project.  DOE’s ability to expedite its review will also depend in part upon the early involvement of any state and federal agencies that must  be consulted, such as the U.S. Fish and Wildlife Service or the State Historic Preservation Officer. Early consultation with potentially affected Tribal governments could also be critical to DOE’s ability to expedite an EIS.  Applicants should note, however, that last minute project changes make expedition of the EIS process more difficult.

DOE is prepared to work with applicants who can show that circumstances are conducive to an expedited EIS process. DOE, however, cannot guarantee completion of an EIS by a date certain and cannot prejudge the outcome of the NEPA process.

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