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Update: U.S. Senator Barbara Boxer tackles NEPA Reform in the Water Resources Development Act of 2013; CEQA Modernization Proposal Falls Short in California

Emily E. Kimball

Emily E. Kimball,

Washington, D.C.

Douglas Wheeler

22 May 2013

Despite criticism from environmentalists and the Obama Administration concerning provisions that would streamline compliance with the National Environmental Policy Act (NEPA), the Senate passed the Water Resources Development Act of 2013 (WRDA), S. 601, by a decisive 83-14 vote on May 15.  The bill in its final form includes provisions that would speed up deadlines for the coordinated review process for feasibility studies requiring an Environmental Impact Statement (EIS) under NEPA for Army Corps of Engineers water development projects such as dam optimization, navigational infrastructure projects, and flood damage reduction projects. 

The new deadlines will apply to the “environmental review process,” a new term defined as “the process of preparing documents under NEPA and the completion of any environmental permit, approval, review, or study required under any Federal law.”  As explained by the Environmental and Public Works Committee report, if an agency’s reviews under all laws are not complete by the later of 180 days after the completion of the Record of Decision or 180 days after all necessary requests for approval have been made, an agency will face fines of $10,000 - $20,000 per week for failure to render a timely decision. The bill also mandates a review of categorical exclusions from EIS requirements currently in use by the Corps and requires the Secretary of the Army to propose new exclusions, where appropriate.  

These efforts to streamline the NEPA process have been met with strong opposition from environmentalists and the Administration.  In an official statement of Administration policy, the White House voiced objection to the bill because it “constrains science-based decision making, increases litigation risk, and undermines the integrity of several foundational environmental laws, including…the National Environmental Policy Act.”  Several environmental groups that are usually closely aligned with Senator Barbara Boxer, the bill’s primary sponsor, have criticized her for “working to undermine one of the bedrock environmental laws.”  Senator Boxer resisted most remedial amendments, laying claim to strong environmental credentials as justification for these modest NEPA reforms.  However, an amendment which characterizes these reforms as a pilot project, limiting their effect to ten years, was adopted prior to passage.  

The legislation next moves to the U.S. House for consideration, although House members are working on their own version of the bill.  It is also unclear whether President Obama will continue to object.  A WRDA bill has not passed Congress since 2007.    

Meanwhile, in Senator Boxer’s home state, California Senate President Pro Tempore Darrell Steinberg’s measure to update the California Environmental Quality Act (CEQA), SB 731, was reported favorably by the Senate Environmental Quality Committee on May 1, 2013.  According to Senator Steinberg’s office, the newly-enhanced bill would establish standard environmental thresholds of significance for impacts of traffic and noise at infill projects, so that projects meeting those thresholds would not be subject to further environmental review for those impacts.  SB 731 also would exclude aesthetic considerations from CEQA analysis. As amended, the bill would reduce legal challenges by raising the threshold for “new information” which might warrant further consideration under CEQA. Finally, the bill also includes provisions for speeding up the disposition of legal challenges under CEQA by allowing for electronic filing of certain procedural notices and findings, for internet-based preparation of the administrative record, and for mutual tolling of the statute of limitations to facilitate settlements. 

However, these amendments have fallen far short of industry’s expectations for significant legislative reform.  Environmentalists also view the bill with skepticism, despite some support for its mostly moderate provisions.  Ultimately, Steinberg’s attempt to find a middle ground for reform may bring incremental improvements, but is unlikely to satisfy advocates of comprehensive reform. Prospects for enactment are clouded, in part because, as reported in our previous post, Governor Jerry Brown has called for more aggressive CEQA reform, which he has referred to as “doing the Lord’s work.”  Last month the Governor acknowledged that enactment of SB 731 would not satisfy his quest for effective reform.

Emily E. Kimball

Emily E. Kimball,

Washington, D.C.

Douglas Wheeler

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