Washington State Environmental Policy Act SEPA

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Washington State Environmental Policy Act (SEPA)

• University of Washington
• Environmental Law and Regulation
• October 2007

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Comparison of NEPA SEPA
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SEPA Policy (RCW 43.21C.020)

• To create and maintain conditions under which man
  and nature can exist in productive harmony and
• Fulfill the social, economic, and other
  requirements of present and future generations of
  Washington citizens
• Assure for all people of Washington safe,
  healthful, productive, and aesthetically and
  culturally pleasing surroundings
• The legislature recognizes that each person has
  a fundamental and inalienable right to a
  healthful environment and that each person has a
  responsibility to contribute to the preservation
  and enhancement of the environment.

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Judicial Elaboration of SEPA Policy

• Polygon Corp. v. City of Seattle, 90 Wn.2d 59,
  578 P.2d 1309 (1978)
• SEPA sets forth a state policy of protection,
  restoration, and enhancement of the environment.
  RCW 43.21C.020
• Procedurally, the environmental protection policy
  is to be implemented by the preparation and
  circulation of an environmental impact statement
  disclosing the environmental impacts of the
  proposed action. RCW 43.21C.030(2)(c).
• Reading SEPA as a purely procedure law would
  thwart the policies it establishes and would
  render the provision that environmental
  amenities and values will be given appropriate
  consideration in decision making a nullity. RCW
  43.21C.030(2)(b).
• It necessarily follows that SEPA confers
  substantive authority to the deciding agency to
  act on the basis of the impacts disclosed.

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Judicial Elaboration of SEPA Policy (Continued)

• However, since the 1980s at least five appellate
  courts have held that government required
  mitigation or denial exceeded SEPA authority
• But, the Court of Appeals decision in the
  Victoria Tower II case upheld Seattles SEPA
  conditions since SEPA bestows broad powers and is
  to be given a vigorous construction

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Judicial Elaboration of SEPA Policy (Continued)

• Required to Mitigate? Save a Valuable Environment
  (SAVE) v. City of Bothell, 89 Wn.2d 862, 870
  71, 576 P.2d 401, 405 06 (1978)
• The action to rezone 141 acres of farm land to
  permit construction of a major regional shopping
  center was arbitrary and capricious in that it
  failed to serve the welfare of the community as a
  whole. Specifically, adverse environmental
  effects and potentially severe financial burdens
  on the affected community have been completely
  disregarded. If it is possible to substantially
  mitigate or avoid potential adverse environmental
  effects, and if Bothell takes the necessary steps
  to do so, responsible planning for the shopping
  center may be reasonable. It has not acted to
  avoid these consequences, however, and the rezone
  cannot be sustained.
• It is the policy of this state, expressed in the
  State Environmental Policy Act that each person
  has a fundamental and inalienable right to a
  healthful environment . . . RCW 43.21C.020(3).
  This right has been threatened in the community
  directly affected by the environmental
  consequences of Bothell's zoning decision. The
  welfare of people living in this area must be
  served.

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When is an EIS to be prepared?SEPA

• The standard for when an EIS should be prepared
  is whether the proposal is "a major action
  significantly affecting the quality of the
  environment ...." RCW 43.21C.030(2)(c)
• An EIS must be prepared whenever more than an
  moderate effect on the environment is a
  reasonable probability. Norway Hill
  Preservation and Protection Association v. King
  County Council, 87 Wn.2d 267, 278, 552 P.2d 674,
  680 (1976)
• Cannot offset negative impacts with the positive
  impacts. WAC 197-11-330(5) King County v.
  Boundary Review Board

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When is an EIS to be prepared?SEPA (Continued)

• In close cases courts tend to require preparation
  of an EIS
• Courts are not inclined to require an EIS where
• There will be no environmental impact without a
  subsequent action that is subject to SEPA, and
• The action does not imply a commitment to a later
  action likely to have environmental consequences
• For rezones, significance tends to be based on
  the differences in allowed intensity between the
  existing and proposed zoning and whether there is
  a specific proposal
• For development permits courts seem to focus on
• Intensity and irrevocability of the proposed
  development
• Vulnerability of the site and surroundings

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When is an EIS to be prepared?SEPA (Continued)

• Shoreline substantial development permits usually
  require an EIS given the SMA policy
• Courts review the threshold decision using the
  arbitrary or capricious standard
• Willful and unreasonable action without
  consideration and in disregard of facts and
  circumstances
• If there is room for two opinions, it is not
  arbitrary or capricious
• In Norway Hill the Washington Supreme Court also
  held that the clearly erroneous standard is also
  used
• Firm and definite conviction a mistake has been
  made
• Taking SEPAs policy into account

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SEPA Categorical Exemptions

• Statutory exemptions in RCW 43.21C.035 through
  0384 for certain irrigation projects, school
  closures, annexations, fish habitat restoration,
  air operating permits, water waste discharge
  permits for existing dischargers, and others
• Administrative exemptions in Part Nine of SEPA
  Rules
• Administrative exemptions cannot include major
  actions significantly affecting the quality of
  the environment. RCW 43.21C.110(1)(a)
• Include optional flexible thresholds WAC
  197-11-800(1)
• From 4 to 20 dwelling units
• From 10,000 to 30,000 sq. ft. agricultural
  buildings
• 20 to 40 car parking lots
• From 100 to 500 cubic yard landfills or
  excavations

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Process for SEPA Threshold Determination

• If not categorically exempt, applicant or agency
  proposing action prepares a SEPA Checklist
• Based on applicants own knowledge and
  observations
• Normally to be prepared by applicant with agency
  assistance
• However, not uncommon for a consultant to prepare
  a checklist
• Independently reviewed by the lead agency. WAC
  197-11-335 provides that If the lead agency
  determines the checklist does not provide
  reasonably sufficient information to evaluate the
  proposal,
• The lead agency must either obtain additional
  information or
• Defer the threshold determination
• The needed information may be provided by the
  applicant, the lead agency, or consultation with
  agencies with jurisdiction or environmental
  expertise

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Process for SEPA Threshold Determination
(Continued)

• Responsible Official makes the threshold
  determination
• Determination of Nonsignificance, no EIS required
• Mitigated Determination of Nonsignificance (DNS),
  no EIS required due to mitigating conditions
• Determination of Significance (DS) and Scoping
  Notice, EIS is required
• Notice is required for DNSs for certain types of
  development such as those where another agency
  has jurisdiction and clearing or grading permits

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SEPA Mitigated Determinations of Nonsignificance

• Provided for in WAC 197-11-350
• Applicant may modify proposal so that it is not
  "a major action significantly affecting the
  quality of the environment ....
• Or the lead agency can require conditions to meet
  the same standard
• Since 1989s West 514 decision, there has been a
  judicial trend not to overturn MDNSs

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SEPA EIS Requirements

• WAC 197-11- 430 -- 443
• Fact Sheet including the planned date of the
  final action
• Table of Contents
• Summary of the contents
• Alternatives including the proposed action
• Must evaluate the no-action alternative and
  compare it to the other alternatives
• Must include reasonable alternatives
• Reasonable alternatives include actions that
  could feasibly attain or approximate a proposals
  objectives, but at a lower environmental cost or
  a decreased level of environmental degradation
• The lead agency may limit reasonable alternatives
  to those over which an agency with jurisdiction
  has authority to control impacts either directly,
  or indirectly through requirement of mitigation
  measures
• In the Citizens Alliance case, the WA Supreme
  Court said that municipalities decide whether to
  review alternatives outside their jurisdiction

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SEPA EIS Requirements (Continued)

• For private projects the lead agency may not be
  required analyze off site alternatives. This
  exemption does not apply to rezones unless the
  rezone is consistent with a comprehensive plan
  that has undergone SEPA review
• A description of the affected environment,
  significant impacts, and mitigation measures
• A succinct description of the principal features
  of the environment that would be affected or
  created
• Describe the significant impacts on the built and
  natural environments
• Clearly indicate mitigation measures that could
  be implemented or might be required as well as
  those that agencies or applicants are committed
  to implement
• Summarize significant impacts that cannot or will
  not be mitigated
• The final EIS must include comment letters and
  responses

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Procedural Requirements for SEPA EISs

• After the threshold determination, the lead
  agency issues the scoping notice. WAC 197-11-
  408
• The lead agency shall narrow the scope of every
  EIS to the probable significant adverse impacts
  and reasonable alternatives, including mitigation
  measures
• Must invite agencies, affected tribes, and the
  public to comment on the scope
• Must allow comments for 21 days, unless expanded
  scoping is used

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Procedural Requirements for SEPA EISs (Continued)

• EIS preparation. WAC 197-11-420
• Lead agency and responsible official responsible
  for compliance
• EIS must be professionally prepared and with an
  interdisciplinary methodology
• Must be readable
• Draft EIS is issued for public comment. WAC
  197-11-455
• Must be provided to each agency with jurisdiction
  or environmental expertise
• Must give public notice. WAC 197-11-510
• Include in SEPA register
• May hold a public hearing or when 50 people or
  two or more agencies request one
• 30 day comment period, may be extended to 45 days
• Issuance of Final EIS. WAC 197-11-455

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When is a SEPA EIS Adequate?

• The Adequacy of an EIS is tested under the rule
  of reason. Citizens Alliance To Protect Our
  Wetlands v. City of Auburn, 126 Wn.2d 356,
  361-362, 894 P.2d 1300, 1304 (1995)
• In order for an EIS to be adequate under this
  rule, the EIS must present decision makers with a
  "reasonably thorough discussion of the
  significant aspects of the probable environmental
  consequences" of the agency's decision. Cheney,
  87 Wn.2d at 344-45 552 P.2d 184 (quoting Trout
  Unlimited v. Morton, 509 F.2d 1276, 1283 (9th
  Cir.1974)).
• The rule of reason is "in large part a broad,
  flexible cost-effectiveness standard", in which
  the adequacy of an EIS is best determined "on a
  case-by-case basis guided by all of the policy
  and factual considerations reasonably related to
  SEPA's terse directives". R. Settle, The
  Washington State Environmental Policy Act A
  Legal and Policy Analysis 14(a)(i) (4th
  ed.1993) .
• This court "must determine whether the
  environmental effects of the proposed action are
  sufficiently disclosed, discussed, and
  substantiated by supportive opinion and data."
• The court does not rule on the wisdom of the
  proposed development but rather on whether the
  FEIS gave the decision maker sufficient
  information to make a reasoned decision

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When is a SEPA EIS Adequate?(Continued)

• Remote and speculative impacts or alternatives
  need not be considered
• Based on cost-effectiveness grounds. SWAP v.
  Okanogan County v. Okanogan County, 66 Wn. App.
  439, 832 P.2d 503 (1992)
• Professor William Rogers has observed a rule of
  thumb that in Washington a statement, any
  statement, is more likely to withstand judicial
  review than a declaration of nonsignificance.
  Rogers, The Washington Environmental Policy Act,
  60 WASH. L. REV. 33, 50 (1984)
• The appellant courts have addressed EIS adequacy
  in 14 cases, only three have found an EIS
  inadequate

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SEPA AppealsRCW 43.21C.060 080 WAC 197-11-
680

• You must exhaust administrative remedies before
  filing a judicial appeal
• The agency or local government is not required to
  have a local appeal process
• But they may
• A SEPA appeal must be combined with an appeal of
  the substantive decision, except for an appeal of
  a DS
• May use a notice of action taken to set a final
  deadline for a SEPA judicial appeal, 21 days from
  the second publication of the notice

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Resources

• Ecologys SEPA website http//www.ecy.wa.gov/prog
  rams/sea/sepa/e-review.html