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Combining NEPA Compliance With Other Statutes: The National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA)

Aaron C. Courtney, National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) is one of a number of federal statutes that impose mandatory procedural requirements upon federal agencies before the agency can implement a major federal action (e.g., issuing a permit or right-of-way, funding a development project). Two other critical procedure-imposing federal statutes are the National Historic Preservation Act (“NHPA”) and the Endangered Species Act (“ESA”).

Together, these three statutes have many similarities, such as consultation/ communication with other agencies, assessing likely impacts/effects of proposed projects, and developing alternatives. Despite these similarities, however, coordinating compliance with each of these statute's procedures can be challenging. Significant permitting delays can result if an applicant is not mindful of each statute's unique requirements and is not careful throughout the permitting process to build a consistent, coordinated administrative record that complies with each of the statutes' requirements

Furthermore, from the perspective of a private permit applicant compliance with the NHPA and the ESA differ in that ESA compliance can trigger NEPA. Because the ESA's “take” prohibition extends beyond the federal government to the public at large, private entities often seek to obtain some level of ESA liability protection, even if their particular project lac