With regard to the Communities for a Better Environment v. California Resources Agency (CBE) court decision, water resources and other public agencies could find their hands tied when it comes to the environmental review and approval process for infrastructure and development projects. With a thorough understanding of the rules, however, environmental reviews and approvals still can be streamlined.

The CBE decision invalidated six sections of the California Environmental Quality Act (CEQA) guidelines, including those that deal with cumulative impact analysis, tiering from prior environmental impact reports (EIRs), and significance thresholds. The guidelines were originally amended in 1998, and 12 of the 150 amended sections were challenged by the CBE. The Sacramento Superior Court invalidated several of these challenged sections in April 2001, but the Building Industry Association filed an appeal in July of that year, and in 2002 the CBE cross-appealed.

At first glance, the CBE decision might make it seem that the CEQA review and approval process now will take longer and cost more money. Water-resources, land-use, and other public agencies, however, can continue to streamline project reviews if they dig deeper into areas of CEQA untouched by the CBE decision and prepare master EIRs.

For water-resources, land-use, and public-works agencies considering infrastructure or water-resources plans or projects, the following are a few insights regarding master EIRs:

Master EIRs Are Renewable
Particularly fitting for agencies that operate under five-year capital-improvement programs, master EIRs provide CEQA coverage in five-year renewable increments. This allows funding cycles to be directly aligned with project schedules.

Master EIRs Can Save Time and Money
In light of the CBE case, a public-works agency could be required to complete several EIRs, which could extend project schedules and increase costs because agencies would have to study the same issues again and again as each subsequent approval was pursued. Master EIRs, however, eliminate redundant studies and still allow agencies to pursue negative declarations—certifications that their projects will not have a significant environmental impact—for smaller components of the larger project.

Master EIRs Will Get More Use as Streamlining Tools
Relatively few master EIRs have been used in California since their addition to CEQA in 1993 because they have been perceived to be more complicated than other streamlining alternatives. With many traditional streamlining methods now banned by the CBE decision, however, Master EIRs will be valued differently. As an outcome of the CBE decision, we can expect them to be used more frequently to obtain CEQA approvals.

Programs in Other States
Similar programs exist in other states throughout the nation, although some go by different names (programmatic environmental impact statements under the National Environmental Policy Act, for example). Regardless of their name, programs that enable local, state, and federal water-resources agencies to save time and money in the permitting process are of great value, particularly in fast-growing, cash-strapped states. Sometimes these streamlining tools are used sparingly, however, because they are unknown or are perceived to be too complex or costly. If water-resources agencies in California and in other states do their homework, they might discover that streamlining programs are accessible—and can save them time and money, as well as create an increased level of certainty.

Using this method to streamline the review process requires innovative thinking, a thorough understanding of CEQA, and a greater integration of land and resource planning, legal strategy, and engineering. Master EIRs, nevertheless, are certainly worth the effort because the benefits they provide can save water-resources, land-use, and public-works agencies critical resources now and in the future.

Brian Boxer, AICP, is senior vice president with EIP Associates, a provider of water-resource planning and environmental services, in Sacramento, CA.

SW January/February 2004