Environmental compliance in permits: REA, EA, DIA and categorical exclusion

It is Chapter 2.6 of Joint Regulation No. 9473. It opens by describing the purpose: the environmental planning process is sui generis, its aim being that Government instrumentalities, before taking an action or final determination, take into account the environmental considerations of that action or determination. The evaluation of an environmental document ends in a set of recommendations that become part of the final determinations of OGPe, hierarchy I-III autonomous municipalities and the Authorised Professional. The regulation governing the evaluation and processing of environmental documents by the Environmental Evaluation Division — DECA — is prepared and adopted by the DRNA with the Governor’s approval, and also contains the provisions on categorical exclusions.

It reaches every action or final determination of Government instrumentalities that requires considering the environment within the permit process. There is one express exception: where the only proposed action is issuing or modifying a permit under the DRNA’s exclusive jurisdiction, DECA need not evaluate the proposed action’s environmental impacts. And there is a short route: where the proposed action qualifies as a categorical exclusion for environmental planning purposes, the applicant certifies so in writing and under oath.

• That the individual or professional preparing the environmental document, or the form claiming a categorical exclusion applies, certifies under oath that the information is truthful, correct and complete: without that certification the application will not be processed.Verified against the official source
• Obtaining the Environmental Recommendation (REA) before filing an Environmental Assessment or an Environmental Impact Statement: it is a compulsory prerequisite.Verified against the official source
• That the format and content of the environmental documents follow the DRNA’s environmental documents regulation.Verified against the official source
• That the environmental compliance determination is issued before the final determination: under no circumstances may a final determination issue until it is.Verified against the official source

Information pending verification.

1. 1

   Step 1: The rule that orders everything else

   The chapter closes its general provisions with a sentence worth keeping in mind on any project: under no circumstances may a final determination be issued until the environmental compliance determination is made. It is not a parallel step you can leave for later: it is a precondition. And the evaluation of an environmental document ends in a set of recommendations that become part of the final determinations of OGPe, hierarchy I-III autonomous municipalities and the Authorised Professional.

2. 2

   Step 2: When you need not go through DECA

   There is a jurisdictional exception written in the same place: where the only proposed action is issuing or modifying a permit under the DRNA’s exclusive jurisdiction, DECA need not evaluate the proposed action’s environmental impacts. That is: where the permit is already the DRNA’s and nothing else is proposed, the evaluation is not duplicated.

3. 3

   Step 3: The sworn certification

   The individual or professional preparing the environmental document — or the form claiming a categorical exclusion applies — certifies, under oath and subject to the penalties imposed by this and any other state or federal law, that the information it contains is truthful, correct and complete. The format and content of environmental documents follow the DRNA’s environmental documents regulation. And the consequence of omitting it is blunt: no application lacking this certification will be processed.

4. 4

   Step 4: Who the proponent agency is

   OGPe acts as the proponent agency in the environmental planning process, except where hierarchy I-III autonomous municipalities have been delegated that power through the transfer agreement established in the Puerto Rico Municipal Code, Ley 107-2020. And the government entities concerned may act as proponent agencies, provided they request it, where OGPe is not empowered to issue final determinations or the power has not been delegated to the autonomous municipality where the action is proposed.

5. 5

   Step 5: The determination is not reviewed separately

   This is the procedural point that decides lawsuits. OGPe’s Assistant Secretary or its Adjudicative Board makes the environmental compliance determination required under Article 4(B)(3) of Ley 416-2004 and the DRNA regulation. And the regulation clarifies its nature: the environmental compliance determination is not a final, independent or separate reviewable decision, but a component of the final determination, and is only reviewable together with it. If you want to challenge environmental compliance, you must challenge the final determination.

6. 6

   Step 6: The REA: thirty days and two years

   DECA directs the evaluation and processing of the environmental document, and the route depends on the agency that will make the final determination, the type of action proposed and the document filed. You start with the Environmental Recommendation. The proponent must file with OGPe a draft environmental document meeting the DRNA regulation’s content and format requirements. DECA sends that document to the Permit Managers or to the agencies with competence over the proposed action for recommendations stating whether the action conforms to the laws and regulations under their jurisdiction; and where the action contemplates projects whose operational phase is regulated by the DRNA, OGPe requires the DRNA’s recommendations on the document. Those recommendations must be submitted within thirty days from the date the REA request is notified. The REA is valid for two years from its issuance. And — the chapter says it twice, once here and again in its special considerations rule — the REA is a compulsory prerequisite to filing an EA or a DIA.

7. 7

   Step 7: The EA: thirty days before the Assistant Secretary

   DECA evaluates the Environmental Assessment under the criteria in the DRNA’s Environmental Documents Evaluation and Processing Regulation, and sends its recommendations to OGPe’s Assistant Secretary within a term not exceeding thirty days from the filing date. The Assistant Secretary makes the environmental compliance determination, which is considered a component of the final determination on the proposed action.

8. 8

   Step 8: The DIA: sixty days before the Adjudicative Board

   DECA evaluates the Environmental Impact Statement under the criteria in the DRNA’s Environmental Documents Regulation, and sends its recommendations to OGPe’s Adjudicative Board within a term not exceeding sixty days from the filing date. The Adjudicative Board makes the environmental compliance determination, likewise a component of the final determination. Note the two differences from the EA: the term doubles and the forum shifts from the Assistant Secretary to the Adjudicative Board.

9. 9

   Step 9: If an autonomous municipality issues the permit

   The route does not change hands entirely. The autonomous municipality sends the environmental document, whether an EA or a DIA, to OGPe. DECA evaluates it under the criteria in the DRNA’s Environmental Documents Regulation and sends its recommendations to OGPe’s Assistant Secretary or the Adjudicative Board, as applicable, who determines environmental compliance and sends the determination back to the autonomous municipality, where it is a component of the final determination on the permit sought.

10. 10

    Step 10: The categorical exclusion

    This is the short route, and its mechanics are simple. Where the proposed action qualifies as a categorical exclusion for environmental planning purposes, the applicant certifies so in writing and under oath. OGPe, through its Assistant Secretary, or the Authorised Professionals, may issue an Environmental Compliance Determination by categorical exclusion automatically; it becomes part of the administrative record and a component of the final determination of the proponent agency or the hierarchy I-III autonomous municipality on the proposed action. Which actions qualify is not stated in this chapter: the categorical exclusions live in the DRNA’s regulation, which we did not read for this guide.

11. 11

    Step 11: How the neighbourhood takes part

    The chapter devotes a whole rule to it, short but clear: citizens may take part in the environmental planning process generally through public hearings or written comments, or both, under the procedure established by the DRNA’s Environmental Documents Regulation. That is: the door is open by rule, but the concrete procedure — when, how and before whom — is in the DRNA’s regulation and not here.

The draft environmental document is filed with OGPe, and DECA directs the evaluation and processing. The environmental compliance determination is made by OGPe’s Assistant Secretary — for the EA and for categorical exclusions — or by OGPe’s Adjudicative Board for the DIA. If an autonomous municipality with hierarchy I to III processes the permit, the municipality sends the document to OGPe and receives the determination back. The content and format of the documents, the list of categorical exclusions and the public participation procedure are in the DRNA’s Environmental Documents Regulation.

• Filing an EA or DIA without first obtaining the REA, a compulsory prerequisite.
• Letting the REA’s two years of validity lapse before filing the environmental document.
• Filing the document without the sworn certification: without it the application is not processed.
• Expecting a final determination before the environmental compliance determination is issued.
• Trying to challenge the environmental compliance determination separately.
• Confusing the terms: thirty days for the EA before the Assistant Secretary, sixty for the DIA before the Adjudicative Board.
• Assuming a permit processed by an autonomous municipality avoids passing through OGPe and DECA.
• Looking in this chapter for the list of categorical exclusions, which is in the DRNA’s regulation.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov