State Environmental Policy Act SEPA Growth Management Act GMA

1
State Environmental Policy Act (SEPA)Growth
Management Act(GMA)

• Barbara Heavey
• King County Department of Development and
  Environmental Services (DDES)
• October 2005

2
SEPA Authority

• RCW 42.21C
• WAC 197-11
• KCC 20.44

3
SEPA History

• Enacted in 1971
• Similar to NEPA (1969)
• Companion to Shoreline Management Act (SMA)
• Major source of regulatory authority for local
  jurisdictions until GMA and critical areas
  regulations (1990-91)
• Regulatory Reform Act (1995)

4
RCW 43.21C includes

• Purposes
• Declarations of responsibility
• Guidelines for state and local agencies

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SEPA Purposes

• Encourage productive and enjoyable harmony
  between man and his environment
• Prevent or eliminate damage to the environment
  and biosphere
• Stimulate the health and welfare of man
• Enrich the understanding of ecological systems
  and natural resources important to the state and
  nation

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SEPA Components

• Procedural
• Substantive

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Procedural

• Must understand and consider the environmental
  consequences when making a decision that affects
  the environment
• Must follow the procedures set out in the
  regulations

8
Substantive

• May condition or deny a proposal based on the
  environmental consequences
• Polygon Corp. v. City of Seattle (1978) may
  condition or deny even though the project meets
  all express requirements of other statues and
  ordinances
• Limited by later amendments

9
SEPA Process

• When presented with an action
• that is not categorically exempt
• the lead agency must
• consult with other agencies
• consider the impacts on the environment and
• make a threshold determination.

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Action

• New and continuing activities entirely or partly
  financed, assisted, conducted, regulated,
  licensed, or approved by agencies
• New or revised rules, regulations, plans,
  policies or procedures
• Legislative proposals

11
Action types

• Project actions
• Non-project actions

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Project Action

• Decision on a specific project, such as
  construction or management activity located in a
  defined geographic area
• Specifically limited to agency decisions to
• License, fund, or undertake any activity that
  will directly modify the environment
• Purchase, sell, lease, transfer or exchange
  natural resources, including publicly owned land,
  whether or not the environment is directly
  modified

13
Non-project Action

• Decision on policies, plans or programs
• Legislation and regulations that contain
  standards controlling use or modification of the
  environment
• Comprehensive land use plans zoning
• Policy, plan or program that will govern the
  development of a series of connected actions
• Creation of a district or annexation to any city,
  town or district
• Capital budgets
• Road, street and highway plans

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Categorical Exemptions

• 27 specific exemptions may be limitations
• Local option to adopt flexible thresholds for
  minor new construction and critical areas
• If exempt, no checklist, threshold determination
  or any documentation required
• Not exempt if a series of actions that are
  physically or functionally related to each other
  and
• Some are exempt and some are not or
• Together may have a probable significant adverse
  environmental impact

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Lead Agency

• Designated when an agency is developing a
  proposal or is presented with a proposal
• Agency with main responsibility for complying
  with procedural requirements
• Only agency responsible for threshold
  determination and environmental impact statement
• Non-lead agency is agency with jurisdiction and
  must be consulted

16
Determining Lead Agency

• First agency developing proposal or presented
  with proposal
• Regulations specify lead agency for specific
  projects
• May enter into lead agency agreements
• May petition state to resolve lead agency
  disputes
• May assume lead agency status within 14 days of
  a DNS

17
Threshold Determination Process

• Review the environmental checklist and other
  supporting documents
• Request additional information
• Consider mitigation measures
• Consider previously prepared environmental
  documents

18
Threshold Determination Standard

• Does the proposal have a probable significant
  adverse environmental impact?
• May be an impact in one location but not another
• May be an impact regardless of the nature of the
  existing environment
• Several marginal impacts considered together may
  result in a significant impact
• May not be able to forecast impacts with
  precision
• May affect sensitive or special areas to a
  significant degree
• May establish a precedent for future actions with
  significant effects, involves unique and unknown
  risks to the environment or may affect public
  health or safety
• Not a balancing act

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Threshold Determination

• Determination of non-significance (DNS)
• Mitigated determination of non-significance
  (MDNS)
• Determination of significance (DS)

20
DNS

• Notice and comment period
• May have an administrative appeal in some
  jurisdictions
• Shall withdraw before final decision if
• Substantial changes to a proposal make impact
  likely
• Significant new information indicating probable
  impacts
• Misrepresentation or lack of material disclosure

21
MDNS

• DNS that includes mitigation measures
• Early notice DS likely
• Mitigations must be based on policies, plans,
  rules, or regulations formally designated and in
  effect when the MDNS is issued
• Mitigations become a part of the proposal
• Notice and comment period
• May have an administrative appeal in some
  jurisdictions

22
DS

• Environmental impact statement (EIS) is required
• May be withdrawn and MDNS issued
• May be an administrative appeal or immediate
  judicial appeal

23
EIS Process

• 21 day scoping period for public and agency
  comment
• Prepared by or under the direction of lead agency
• May be agency imposed time limits
• Draft EIS issued with 30 to 45 day comment
  period may be public meeting
• No appeal of DEIS
• Final EIS includes response to comments,
  additional analysis
• 7 day waiting period before final decision

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EIS Content

• Format and contents specified in WAC
• Elements of the environment specified only
  address those that are relevant
• Reasonable alternatives must be considered,
  including no action
• Analyze only environmental impacts not required
  to document all impacts
• Cost-benefit analysis is not required but may be
  included

25
Other Environmental Documents

• Supplemental EIS
• Same process as DEIS and FEIS except scoping is
  optional
• May come before or after FEIS
• Addendum
• Provides additional information or analysis but
  does not substantially change the analysis of
  significant impacts and alternatives
• May have different notice requirements based on
  time in the process
• NEPA documents
• May require additional public hearings

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Use of Existing Documents

• Adoption or incorporation by reference
• Required when agency is acting on the same
  proposal except
• May assume lead agency status for DNS
• Substantial changes in the proposal
• New information or misrepresentation
• Comments on DEIS warrant additional discussion
  beyond lead agencys FEIS
• A new TD is not required if the impacts are
  covered by the range of alternatives and impacts
  analyzed

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Substantive Authority

• First established judicially
• May be conditioned or denied to mitigate the
  environmental impacts

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Mitigation Measures

• Mitigation measures shall be
• Based on policies, plans, rules, or regulations
  formally designated by the agency in effect when
  MDNS or DEIS is issued
• Related to specific adverse environmental impacts
  clearly identified in an environmental document
  on the proposal
• Reasonable and capable of being accomplished
• Attributable to the identified adverse impacts of
  the proposal (nexus)
• Must consider whether local, state or federal
  requirements or enforcement mitigate an impact

29
Denials

• To deny an agency must find
• Significant adverse environmental impact
  identified in a FEIS or SEIS
• Reasonable mitigation measures are insufficient
• An agency is not required to deny a project

30
Administrative Appeals

• Agencies may, but are not required to, establish
  administrative appeals
• Only one open record hearing and one closed
  record per permit decision
• Can not allow appeal of intermediate steps
• One appeal of threshold determination or adequacy
  of EIS
• May occur prior to final decision on permit
• Procedural and substantive appeals must be
  consolidated with permit hearings except
• Appeal of a DS
• Procedural decisions on an agency project prior
  to submittal of an application for a permit
• Procedural decisions on non-project actions
• Decision of responsible official entitled to
  substantial weight
• Must use administrative appeal, if any, before
  judicial appeal

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Judicial Appeals

• Largely governed by other statutes
• Must consolidate SEPA appeal with appeal of the
  underlying permit or decision

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Growth Management Act (GMA) History

• 1985 King County Comprehensive Plan
• 1989 Chelan Conference
• 1990 First GMA
• 1991 Countywide Planning Revisions
• 1991 KC Sensitive Areas Ordinance
• 1995 Regulatory Reform Act Best Available
  Science for critical areas
• 1997 Buildable Lands Inventory periodic review
• 2004 Critical area compliance deadline

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GMA Goals

• Urban growth
• Reduce sprawl
• Transportation
• Affordable housing
• Economic development
• Property rights
• Permits
• Natural resource industries

• Open space recreation
• Environment
• Citizen participation coordination
• Public facilities services
• Historic preservation
• Shoreline Management

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GMA Applicability

• Only fastest growing counties others may opt in
• County and all cities within the county must plan
• Sanctions for non-compliance
• Special district planning requirements vetoed

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GMA Structure

• Coordinated planning
• County-wide planning policies
• Ratification procedures for policies and
  amendments
• Consistent Comprehensive Plans
• Regulations consistent with plans
• Enforcement through Growth Management Hearing
  Boards

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GMA Required Actions

• Adopt plan and implementing regulations
• Establish urban growth boundaries
• Designate and protect natural resource lands
• Designate and protect critical areas
• Infrastructure concurrent with growth
• Transportation concurrency mandated
• Level of service standards
• King County school concurrency

37
Comprehensive Plans Mandatory Elements

• Land use
• Housing
• Capital facilities
• Utilities
• Rural
• Transportation
• Economic development
• Parks and recreation

38
Comprehensive Plans Urban Growth Area

• Designated by county with cities consultation
• All cities must be within
• Can not annex or incorporate non-urban areas
• Potential annexation areas designated
• Most growth concentrated within Urban area
• All other areas are rural or resource production
  areas
• Rural areas zoned residential
• Resource production areas include forest,
  agriculture, mineral
• Non-resource uses are limited

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Critical Area Required Actions

• Designate
• Protect
• Include Best Available Science (BAS)

40
GMA Critical Areas

• Wetlands
• Areas with critical rechargeing effect on
  aquifers used for potable water (CARA)
• Fish and wildlife habitat conservation areas
• Frequently flooded areas
• Geologically hazardous areas
• defined by statute

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Critical Areas Definitions

• RCW list is the minimum, local jurisdictions can
  do more
• Substantive changes to statutory definitions are
  not allowed
• Jurisdictions may adopt definitions for undefined
  terms as long as they comply with the statute

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King County Critical Areas

• Coal mine hazard
• Erosion hazard
• Flood hazard
• Floodplain
• Zero-rise flood fringe
• Zero-rise floodway
• FEMA floodway
• Channel migration zone
• Landslide hazard
• Seismic hazard
• Steep slope hazard
• Volcanic hazard

• Aquatic areas
• Streams
• Lakes
• Marine shoreline
• Critical aquifer recharge
• Wetlands
• Wildlife habitat conservation
• Wildlife habitat networks

43
Critical Area Guidance

• Wn. Depart. Of Community Trade Economic
  Development (CTED) required to adopt minimum
  guidelines
• Advisory, must be considered give serious
  thought

44
Critical Areas Designation

• Mapping
• Geohazards, flood hazard, CARA
• Criteria for identifying
• Wetlands, stream classifications
• Some have both map and criteria

45
Critical Area Protection

• Protect development from hazard areas
• Adequately protect development
• Assure development does not result in harm to
  other properties
• Protect critical areas from development
• No net loss of value functions of eco systems
  within a watershed or other functional catchment
  area
• No less protection for urban areas but may vary
  buffers if no-net-loss standard met

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Best Available Science (BAS)

• In designating and protecting critical
  areascounties and cities shall include the best
  available science in developing policies and
  development regulations to protect the functions
  and values of critical areas. In addition,
  counties and cities shall give special
  consideration to conservation or protection
  measures necessary to preserve or enhance
  anadromous fisheries. (RCW 36.70A.172)

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BAS CTED Guidance

• WAC 365-195 sections 900-925
• Description of the standards for a valid
  scientific process
• Departures from science-based recommendations
• Guidance when there is inadequate scientific
  information
• Precautionary or no-risk approach
• Interim measures and adaptive management

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BAS Valid Scientific Process

• Findings critically reviewed by qualified
  scientific experts in the field
• Methods used are standard in the field or peer
  reviewed
• Conclusions are logical and inferences reasonable
  given the data and methods
• Data have been analyzed using standard or peer
  reviewed quantitative or statistical methods
• Data and findings are place in proper context
• Assumptions, analytical techniques and
  conclusions are well referenced to relevant,
  credible, scientific literature

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BAS Growth Board Review Focus

• Is the scientific evidence in the record?
• Did the analysis by the local decision-maker of
  the scientific evidence and other factors involve
  a reasoned process?
• Was the decision within the parameters of the
  act? (RCW 36.70A.172(1))

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BAS Judicial Interpretations

• Not just a procedural requirement BAS must be
  considered substantively
• Must be considered and balanced with other goals
  of the GMA
• May be possible to depart from BAS based on
  local circumstances not clear yet what would be
  sufficient

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BAS King County Departures

• Urban/rural buffer differences for wetlands and
  aquatic areas
• Rural stewardship plans
• Agricultural plans via King Conservation District
• Forest plans