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abakalian@zdblaw.comCopyright 2011 - All rights reserved

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SEPA: OVERVIEW OF SEPA: OVERVIEW OF THE LAW AND THE LAW AND

REGULATIONS REGULATIONS

Allan BakalianAllan BakalianZeno Drake Bakalian P.S.Zeno Drake Bakalian P.S.

Kirkland, WA 98033Kirkland, WA 98033(425) 822-1511(425) 822-1511

Allan Bakalian Allan Bakalian is a partner with Zeno Drake Bakalian P.S. in Kirkland, is a partner with Zeno Drake Bakalian P.S. in Kirkland, WA. He has practiced environmental law in Washington and Oregon for WA. He has practiced environmental law in Washington and Oregon for over twenty years. He began his career as an Assistant Regional over twenty years. He began his career as an Assistant Regional Counsel for the U.S. Environmental Protection Agency in Seattle, where Counsel for the U.S. Environmental Protection Agency in Seattle, where he represented the U.S. in Superfund and hazardous waste matters. He he represented the U.S. in Superfund and hazardous waste matters. He served as Senior Environmental Counsel for Univar Corp. for 9 years, served as Senior Environmental Counsel for Univar Corp. for 9 years, and has been in private practice since 2001. Allan represents companies and has been in private practice since 2001. Allan represents companies and individuals in environmental and land use matters in Washington and and individuals in environmental and land use matters in Washington and Oregon, specializing in hazardous waste investigations and cleanups, Oregon, specializing in hazardous waste investigations and cleanups, regulatory compliance and enforcement actions, SEPA proceedings, regulatory compliance and enforcement actions, SEPA proceedings, stormwater permitting and compliance, natural resource protection and stormwater permitting and compliance, natural resource protection and real estate due diligence and transactions. He diligently defends his real estate due diligence and transactions. He diligently defends his clients and has obtained successful results for them in federal, state and clients and has obtained successful results for them in federal, state and administrative proceedings. Allan earned his J.D. degree, with honors, administrative proceedings. Allan earned his J.D. degree, with honors, from Lewis and Clark Law School in Portland, Oregon. from Lewis and Clark Law School in Portland, Oregon.

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Introduction and Summary Introduction and Summary

1969 NEPA1969 NEPA 1971 Washington State Environmental 1971 Washington State Environmental

Policy Act (SEPA)Policy Act (SEPA) 1983 SEPA Amendments 1983 SEPA Amendments Chapter 43.21C RCWChapter 43.21C RCW Ecology Regulations at WAC 197-11 Ecology Regulations at WAC 197-11

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SEPA DeclarationSEPA Declaration

State goal to “fulfill the responsibilities of each State goal to “fulfill the responsibilities of each generation as trustee of the environment for generation as trustee of the environment for succeeding generations”succeeding generations”

““Enhance the quality of renewable resources Enhance the quality of renewable resources and approach the maximum attainable recycling and approach the maximum attainable recycling of depletable resources”of depletable resources”

““Each person has a fundamental and inalienable Each person has a fundamental and inalienable right to a healthful environment and . . .”right to a healthful environment and . . .”

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SEPA Declaration, con’t.SEPA Declaration, con’t.

““each person has a responsibility to each person has a responsibility to contribute to the preservation and contribute to the preservation and enhancement of the environmentenhancement of the environment.”.”

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SEPA POLICY SEPA POLICY WAC 197–11–030 WAC 197–11–030

All state agencies shall to the fullest extent possible:All state agencies shall to the fullest extent possible:

Interpret and administer the policies, regulations, and Interpret and administer the policies, regulations, and laws of the state of Washington in accordance with the laws of the state of Washington in accordance with the policies set forth in SEPA and these rules. policies set forth in SEPA and these rules.

Find ways to make the SEPA process more useful to Find ways to make the SEPA process more useful to decision makers and the public; promote certainty decision makers and the public; promote certainty regarding the requirements of the act; reduce paperwork regarding the requirements of the act; reduce paperwork and the accumulation of extraneous background data; and the accumulation of extraneous background data; and emphasize important environmental impacts and and emphasize important environmental impacts and alternatives. alternatives.

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SEPA POLICY, con’tSEPA POLICY, con’t

Prepare environmental documents that are concise, Prepare environmental documents that are concise, clear, and to the point, and are supported by evidence clear, and to the point, and are supported by evidence that the necessary environmental analyses have been that the necessary environmental analyses have been made. made.

Initiate the SEPA process early in conjunction with other Initiate the SEPA process early in conjunction with other agency operations to avoid delay and duplication. agency operations to avoid delay and duplication.

Integrate the requirements of SEPA with existing agency Integrate the requirements of SEPA with existing agency planning and licensing procedures and practices, so that planning and licensing procedures and practices, so that such procedures run concurrently rather than such procedures run concurrently rather than consecutively. consecutively.

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SEPA POLICY, con’tSEPA POLICY, con’t

Encourage public involvement in decisions that Encourage public involvement in decisions that significantly affect environmental quality. significantly affect environmental quality.

Identify, evaluate, and require or implement, Identify, evaluate, and require or implement, where required by the act and these rules, where required by the act and these rules, reasonable alternatives that would mitigate reasonable alternatives that would mitigate adverse effects of proposed actions on the adverse effects of proposed actions on the environment.environment.

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SIZE DOESN’T MATTERSIZE DOESN’T MATTER

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Environmental Review for any activity Environmental Review for any activity that constitutes an “Action” that constitutes an “Action”

Affecting Quality of the environmentAffecting Quality of the environment Including regulatory approvalsIncluding regulatory approvals May vary from jurisdiction to jurisdiction May vary from jurisdiction to jurisdiction

(city, county, state) (city, county, state)

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RESOURCE RELATED ACTIONS

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SEPA WRAPS AROUND SEPA WRAPS AROUND ENVIRONMENTAL LAWSENVIRONMENTAL LAWS

For agencies, counties, cities, municipal For agencies, counties, cities, municipal and public corporationsand public corporations

Overlays Existing Laws and Regulations Overlays Existing Laws and Regulations Intertwined with local land use decision Intertwined with local land use decision

making making Environmental review process Environmental review process Far-reaching scopeFar-reaching scope

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SEPA ActionsSEPA Actions

Land Land AirAir WaterWater Wetlands Wetlands ShorelinesShorelines Carbon Emissions (NEW)Carbon Emissions (NEW) TransportationTransportation Hazardous waste cleanupsHazardous waste cleanups MiningMining

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Integration of SEPA and Land Use Integration of SEPA and Land Use and Development and Development

Growth Management Act, RCW 36.70AGrowth Management Act, RCW 36.70A Land Use Procedure Act, RCW 36.70CLand Use Procedure Act, RCW 36.70C Comprehensive PlansComprehensive Plans Zoning OrdinancesZoning Ordinances

1515

SEPA ACTION SEPA ACTION

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SEPA “ACTIONS”SEPA “ACTIONS”

““Action” or proposal, Action” or proposal, broadly defined, is a broadly defined, is a project or activity that modifies the environment. project or activity that modifies the environment.

The SEPA process starts when an application The SEPA process starts when an application for an action or a proposal is submitted to the for an action or a proposal is submitted to the appropriate agency or agencies for review and appropriate agency or agencies for review and approval; or at the point when the environmental approval; or at the point when the environmental effects can be meaningfully evaluated as an effects can be meaningfully evaluated as an agency is preparing to make a decision on agency is preparing to make a decision on alternative ways of accomplishing a goalalternative ways of accomplishing a goal. .

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SEPA NOTICE OF ACTONSEPA NOTICE OF ACTON

A A “Notice of Action”“Notice of Action” is issued by the lead is issued by the lead agency when there is no underlying government agency when there is no underlying government action, such as a permit or use authorization, action, such as a permit or use authorization, that provides for approval of the proposed action that provides for approval of the proposed action under SEPA review to proceed and for an under SEPA review to proceed and for an appeals process. The notice of action provides appeals process. The notice of action provides an opportunity for the public to be notified of the an opportunity for the public to be notified of the decision to proceed, and provides for an appeal decision to proceed, and provides for an appeal process of the decision and SEPA procedures. process of the decision and SEPA procedures.

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LEAD AGENCYLEAD AGENCY The lead agency for a government proposal is the The lead agency for a government proposal is the

agency initiating the action, or if two or more agencies agency initiating the action, or if two or more agencies share in the implementation, the agencies shall decide share in the implementation, the agencies shall decide which is lead by agreement which is lead by agreement

The lead agency for private projects is the agency with The lead agency for private projects is the agency with permitting jurisdictionpermitting jurisdiction

The lead agency for private projects requiring permits or The lead agency for private projects requiring permits or approval from more than one agency, when at least one approval from more than one agency, when at least one agency is a city/county, is the county or city with agency is a city/county, is the county or city with jurisdiction where the project is locatedjurisdiction where the project is located

The lead agency for private projects requiring licenses The lead agency for private projects requiring licenses from a local agency, other than a county or city, and from a local agency, other than a county or city, and more than one state agencies, is the local agencymore than one state agencies, is the local agency..

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LEAD AGENCY, con’t.LEAD AGENCY, con’t. The lead agency for private projects requiring licenses from several state agencies is The lead agency for private projects requiring licenses from several state agencies is

determined based on the priorities in WAS 197-11-936:determined based on the priorities in WAS 197-11-936: Department of EcologyDepartment of Ecology

          Department of social and health services Department of social and health services

          Department of natural resources Department of natural resources

          Department of fisheries Department of fisheries

          Department of game Department of game

          Utilities and transportation commission Utilities and transportation commission

          Department of motor vehicles Department of motor vehicles

          Department of labor and industries Department of labor and industries

When none of the state agencies requiring a license is on the above list, the lead When none of the state agencies requiring a license is on the above list, the lead agency shall be the licensing agency that has the largest biennial appropriation.agency shall be the licensing agency that has the largest biennial appropriation.

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ENVIRONMENTAL CHECKLISTENVIRONMENTAL CHECKLIST

WAC 197-11-960 WAC 197-11-960 Completed by the applicant or project proponent Completed by the applicant or project proponent Not required when there will be an EIS Not required when there will be an EIS Site specific or ‘expanded’ SEPA checklistsSite specific or ‘expanded’ SEPA checklists

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THRESHOLD DETERMINATIONTHRESHOLD DETERMINATION

By the responsible officialBy the responsible official Decision whether significant environmental Decision whether significant environmental

impacts are likely to occurimpacts are likely to occur Whether an EIS is required for actionWhether an EIS is required for action Documented in either a determination of Documented in either a determination of

non-significance (DNS)non-significance (DNS) Or determination of significance (DS)Or determination of significance (DS) Environmental impact statement (EIS). Environmental impact statement (EIS).

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AGENCY DETERMINATIONSAGENCY DETERMINATIONS

A A “Determination of Nonsignificance”“Determination of Nonsignificance” (DNS) is a (DNS) is a written decision by the SEPA “responsible official” that written decision by the SEPA “responsible official” that an action or proposal is not likely to have a significant an action or proposal is not likely to have a significant adverse environmental impact. A DNS usually requires adverse environmental impact. A DNS usually requires that an agency provide notice to the public regarding the that an agency provide notice to the public regarding the determination and receive public comments for 14 days.determination and receive public comments for 14 days.

A A “Determination of Significance”“Determination of Significance” (DS) is a written (DS) is a written decision by the SEPA responsible official that an action decision by the SEPA responsible official that an action or proposal is likely to have a significant adverse or proposal is likely to have a significant adverse environmental impact and therefore an Environmental environmental impact and therefore an Environmental Impact Statement (EIS) is required.Impact Statement (EIS) is required.

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AGENCY DETERMINATIONS, con’t.AGENCY DETERMINATIONS, con’t.

A A “Mitigated Determination of Nonsignificance”“Mitigated Determination of Nonsignificance” (MDNS) is a determination that includes specific (MDNS) is a determination that includes specific measures to mitigate or avoid potential impacts measures to mitigate or avoid potential impacts

Mitigation measures are incorporated throughout the Mitigation measures are incorporated throughout the development of the proposal and documented in the development of the proposal and documented in the MDNS MDNS

An MDNS requires notice and a 14 day public comment An MDNS requires notice and a 14 day public comment periodperiod

Mitigation measures can be negotiated with the agency, Mitigation measures can be negotiated with the agency, included as an addendum to the checklist, or written into included as an addendum to the checklist, or written into the permit as conditionsthe permit as conditions

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Mitigated Determinations of Mitigated Determinations of NonsignificanceNonsignificance

Mitigation measures may also be imposed Mitigation measures may also be imposed by the lead agency as a condition of the by the lead agency as a condition of the DNS provided the mitigation measures are DNS provided the mitigation measures are reasonable and capable of being reasonable and capable of being accomplished; related to specific, adverse accomplished; related to specific, adverse environmental impacts identified in the environmental impacts identified in the proposal and be project specific (not proposal and be project specific (not based on cumulative impacts of based on cumulative impacts of development)development)

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Checklist or BustChecklist or Bust

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Bargmann v. City of EphrataBargmann v. City of Ephrata, WA Court of Appeals, Div. 3, , WA Court of Appeals, Div. 3,

July 8, 2004 (unpublished opinion)July 8, 2004 (unpublished opinion)

AcreageAcreage PhasesPhases TimingTiming

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Bargmann v. City of EphrataBargmann v. City of Ephrata

WAC 197-11-600 requires a new checklist WAC 197-11-600 requires a new checklist or EIS "if there are substantial changes to or EIS "if there are substantial changes to a proposal so that the proposal is likely to a proposal so that the proposal is likely to have significant adverse environmental have significant adverse environmental impacts.“impacts.“

RCW 4.84.37 (attorney fee award)RCW 4.84.37 (attorney fee award)

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Mitigated Determination of NonSignigance For Addition of Mitigated Determination of NonSignigance For Addition of Gas Station at Shopping CenterGas Station at Shopping Center

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Boehm v. City of VancouverBoehm v. City of Vancouver, 111 Wash.App. 711, 47 P.3d , 111 Wash.App. 711, 47 P.3d 137 (2002)137 (2002)

Fred Meyer Gas Station, Vancouver, WAFred Meyer Gas Station, Vancouver, WA Existing Shopping Center and StoreExisting Shopping Center and Store Voluntary traffic study to address public Voluntary traffic study to address public

commentscomments Environmental Review ReportEnvironmental Review Report LUPA Standard of ReviewLUPA Standard of Review No evidence of site specific or cumulative No evidence of site specific or cumulative

impactsimpacts No collateral challenge to Certificate of No collateral challenge to Certificate of

Concurrency (re traffic impacts)Concurrency (re traffic impacts)

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Determination of Probable Determination of Probable Significant Adverse ImpactSignificant Adverse Impact

Threshold determination requiring an EISThreshold determination requiring an EIS Based on review of environmental Based on review of environmental

checklist and other informationchecklist and other information Involves consideration of mitigation Involves consideration of mitigation

measuresmeasures ““Significant” adverse impacts are those Significant” adverse impacts are those

that are more than marginally detrimental that are more than marginally detrimental to environmental quality.to environmental quality.

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SIGNIFICANT ADVERSE IMPACTSIGNIFICANT ADVERSE IMPACT

““Significant” Significant” is defined as "a reasonable is defined as "a reasonable likelihood of more than a moderate adverse likelihood of more than a moderate adverse impact on environmental quality.” impact on environmental quality.” WAC 197-11-794(1)WAC 197-11-794(1)

What is considered significant will vary from one What is considered significant will vary from one site to another, and from one jurisdiction to site to another, and from one jurisdiction to another, both because of the conditions another, both because of the conditions surrounding the proposal at a particular location, surrounding the proposal at a particular location, and because of the judgment of the responsible and because of the judgment of the responsible official. There is no standard formula.official. There is no standard formula.

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‘‘Significant Impact’ FactorsSignificant Impact’ Factors

Context of actionContext of action – varies based on – varies based on physical settingphysical setting

Intensity of actionIntensity of action – depends on – depends on magnitude and duration of impactsmagnitude and duration of impacts

The The severity of the impactseverity of the impact must be must be weighed with the likelihood of its weighed with the likelihood of its occurrence (e.g., nuclear meltdown)occurrence (e.g., nuclear meltdown)

Determination must be made separate Determination must be made separate from the proposal’s benefitsfrom the proposal’s benefits

Irrigation Pond or Water Ski Lake

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Foster v. King CountyFoster v. King County, 83 Wash.App. , 83 Wash.App. 339, 921 P.2d 553 (1996)339, 921 P.2d 553 (1996)

Appeal of threshold Determination of Appeal of threshold Determination of Significance by K.C. requiring EIS for Significance by K.C. requiring EIS for irrigation/water skiing pond in Carnation. irrigation/water skiing pond in Carnation.

Application withdrawn but pond Application withdrawn but pond constructedconstructed

Stop Work OrderStop Work Order New application for Critter Pond approvedNew application for Critter Pond approved Excessive Grading at nightExcessive Grading at night Injunction IssuedInjunction Issued

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Foster v. King CountyFoster v. King County, 83 Wash.App. , 83 Wash.App. 339, 921 P.2d 553 (1996)339, 921 P.2d 553 (1996)

New Checklist Submitted for 2,000 x 250 ft. New Checklist Submitted for 2,000 x 250 ft. ‘irrigation’ pond.‘irrigation’ pond.

New Determination of Significance issued for EISNew Determination of Significance issued for EIS Hearing Examiner upheld D.S. for irrigation/water Hearing Examiner upheld D.S. for irrigation/water

skiing pond – appeal filedskiing pond – appeal filed SEPA DS cannot be challenged until a final SEPA DS cannot be challenged until a final

decision is made on underlying permit application decision is made on underlying permit application (grading) (no writ of review)(grading) (no writ of review)

Not categorically exempt action (irrigation). Not categorically exempt action (irrigation). HE decision to reverse DS and issue an MDNS HE decision to reverse DS and issue an MDNS

conditioned up removing water skiing use not conditioned up removing water skiing use not arbitrary and capricious.arbitrary and capricious.

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ENVIRONMENTAL IMPACT ENVIRONMENTAL IMPACT STATEMENT STATEMENT

AnAn “Environmental Impact Statement” “Environmental Impact Statement” (EIS) is (EIS) is required for projects or actions with likely required for projects or actions with likely significant adverse environmental impacts. significant adverse environmental impacts.

Methodology for identifying and analyzing Methodology for identifying and analyzing potentially adverse impacts, and finding potentially adverse impacts, and finding reasonable alternatives and possible mitigation reasonable alternatives and possible mitigation measures. measures.

Useful for developing mitigation conditionsUseful for developing mitigation conditions

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EIS SCOPINGEIS SCOPING

The EISThe EIS “Scoping Process” “Scoping Process” is the first is the first formal step in preparing an EIS. formal step in preparing an EIS.

Initiate public involvement in the EIS Initiate public involvement in the EIS processprocess

Narrow the focus of the EIS to significant Narrow the focus of the EIS to significant environmental issuesenvironmental issues

Eliminate those issues that are Eliminate those issues that are insignificant or not directly related to the insignificant or not directly related to the proposal. proposal.

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Project Applicant’s RoleProject Applicant’s Role

In nearly all private actions requiring government In nearly all private actions requiring government approval, the project applicant, not the agency, approval, the project applicant, not the agency, bears the burden of preparing the EIS. bears the burden of preparing the EIS.

Depending on the jurisdiction and type of Depending on the jurisdiction and type of analysis required, the applicant will prepare the analysis required, the applicant will prepare the EIS for agency review or pay for an EIS to be EIS for agency review or pay for an EIS to be done under the agency’s direction.done under the agency’s direction.

In either case, the applicant should work closely In either case, the applicant should work closely with the agency to avoid pitfalls or inadequacies with the agency to avoid pitfalls or inadequacies in the EIS review.in the EIS review.

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RESPONSIBLE AGENCY RESPONSIBLE AGENCY OFFICIALOFFICIAL

Each agency must designate a Each agency must designate a “Responsible Official” “Responsible Official” The Responsible Official must administer the SEPA The Responsible Official must administer the SEPA

review and decision making process.review and decision making process. Must ensure an open process, adequate notification, Must ensure an open process, adequate notification,

proper scoping of the proposal, disclosure of impacts, proper scoping of the proposal, disclosure of impacts, consideration of mitigation, and consideration of public consideration of mitigation, and consideration of public comments. comments.

Responsible for compliance with the SEPA procedural Responsible for compliance with the SEPA procedural requirements and threshold determination. requirements and threshold determination.

If no agency approval or other agency action is required, If no agency approval or other agency action is required, SEPA review is not required.SEPA review is not required.

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Environmental Impact Statement Environmental Impact Statement ProcessProcess

Draft EISDraft EIS Final EISFinal EIS Supplemental EISSupplemental EIS DEIS issued for 30 days of public DEIS issued for 30 days of public

commentcomment FEIS required within 60 days of the end of FEIS required within 60 days of the end of

public comment periodpublic comment period Final EIS sent to Ecology and all other Final EIS sent to Ecology and all other

agencies that commentedagencies that commented

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DRAFT EISDRAFT EIS

The Draft EIS must Include a detailed statement by the responsible The Draft EIS must Include a detailed statement by the responsible official on:official on:

     (i) the environmental impact of the proposed action;     (i) the environmental impact of the proposed action;

     (ii) any adverse environmental effects which cannot be avoided      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;should the proposal be implemented;

     (iii) alternatives to the proposed action;     (iii) alternatives to the proposed action;

     (iv) the relationship between local short-term uses of man's      (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term environment and the maintenance and enhancement of long-term productivity; andproductivity; and

     (v) any irreversible and irretrievable commitments of resources      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be which would be involved in the proposed action should it be implemented;implemented;

RCW 43.21C.030(2)(c)RCW 43.21C.030(2)(c)

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EIS RequirementsEIS Requirements The Responsible official shall consult with and obtain the The Responsible official shall consult with and obtain the

comments of all public agencies with jurisdiction or comments of all public agencies with jurisdiction or expertise.expertise.

The EIS and comments and views of the appropriate The EIS and comments and views of the appropriate federal, state and local agencies shall be made available federal, state and local agencies shall be made available and shall accompany the proposal through the review and shall accompany the proposal through the review processes.processes.

The EIS must study, develop, and describe appropriate The EIS must study, develop, and describe appropriate alternatives to recommended courses of action in any alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning proposal which involves unresolved conflicts concerning alternative uses of available resources;alternative uses of available resources;

RCW 43.21C.030(2)(d) and (e)RCW 43.21C.030(2)(d) and (e)

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Adequacy of EISAdequacy of EIS Appellate court's focus is to determine whether the Appellate court's focus is to determine whether the

environmental effects of the proposed action are environmental effects of the proposed action are disclosed, discussed and substantiated by opinion and disclosed, discussed and substantiated by opinion and data RCW 43.21C.030; data RCW 43.21C.030; Gebbers v. Okanogan County Gebbers v. Okanogan County Public Utility Dist. No. 1, 1Public Utility Dist. No. 1, 144 Wash.App. 371, 183 P.3d 44 Wash.App. 371, 183 P.3d 324 (2008). 324 (2008).

The purpose of an EIS is to facilitate the decision-making The purpose of an EIS is to facilitate the decision-making process; it need not list every remote, speculative, or process; it need not list every remote, speculative, or possible effect or alternative.possible effect or alternative.

The discussion of alternatives in an EIS need not be The discussion of alternatives in an EIS need not be exhaustive, but must present sufficient information for a exhaustive, but must present sufficient information for a reasoned choice among alternatives.reasoned choice among alternatives.

Additional projects do not require review for cumulative Additional projects do not require review for cumulative impacts in an EIS if the additional projects are either impacts in an EIS if the additional projects are either substantially independent from the proposed action or substantially independent from the proposed action or are not necessary to the project's purpose and needare not necessary to the project's purpose and need

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Consideration of AlternativesConsideration of AlternativesOkanogan County Public Utilities District No. 1Okanogan County Public Utilities District No. 1, 144 , 144

Wash.App. 371, 183 P.3d 324 (2008).Wash.App. 371, 183 P.3d 324 (2008).

Challenge to sufficiency of Final EIS for PUD’s Challenge to sufficiency of Final EIS for PUD’s construction of new power lines over Cascade Mts.construction of new power lines over Cascade Mts.

FEIS not required to consider, as an alternative to the FEIS not required to consider, as an alternative to the new line, rebuilding of the existing line as a connected new line, rebuilding of the existing line as a connected action under a cumulative impacts analysisaction under a cumulative impacts analysis

FIES sufficiently discussed and estimated the FIES sufficiently discussed and estimated the environmental impacts and the economic costs of the environmental impacts and the economic costs of the alternatives. alternatives.

Purpose of EIS is to facilitate the decision-making Purpose of EIS is to facilitate the decision-making processprocess

Speculative, remote or possible alternatives do not need Speculative, remote or possible alternatives do not need to be consideredto be considered

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Cumulative ImpactsCumulative ImpactsOkanogan County Public Utilities District No. 1Okanogan County Public Utilities District No. 1, 144 , 144

Wash.App. 371, 183 P.3d 324 (2008).Wash.App. 371, 183 P.3d 324 (2008). SEPA does not define cumulative impacts.SEPA does not define cumulative impacts. NEPA defines it as “the impact from the environment NEPA defines it as “the impact from the environment

which results from the incremental impact of the action which results from the incremental impact of the action when added to other past, present, and reasonably when added to other past, present, and reasonably foreseeable actions.” 40 CFR 1508.7foreseeable actions.” 40 CFR 1508.7

Additional projects do not require review in an EIS for Additional projects do not require review in an EIS for cumulative impacts if they are either substantially cumulative impacts if they are either substantially independent from the proposed action or not necessary independent from the proposed action or not necessary to meet the project’s purposeto meet the project’s purpose

Construction of new line, along with maintenance of old Construction of new line, along with maintenance of old line for backup, does not created a connected or line for backup, does not created a connected or cumulative actioncumulative action

Potential for future project involving rebuilding existing Potential for future project involving rebuilding existing line is independent, and not a cumulative impactline is independent, and not a cumulative impact

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Use of Existing EISUse of Existing EISWAC 197-11-600(3) provides that any agency acting on WAC 197-11-600(3) provides that any agency acting on the same proposal must use the existing EIS unless:the same proposal must use the existing EIS unless:

Assume lead agency status (WAC 197-11-240)Assume lead agency status (WAC 197-11-240)

There is new threshold determination or supplemental There is new threshold determination or supplemental EIS is required based on a “substantial change” that EIS is required based on a “substantial change” that results in significant adverse environmental impacts orresults in significant adverse environmental impacts orthere is “new information” or “misrepresentation” about there is “new information” or “misrepresentation” about the environmental impacts. the environmental impacts.

If the agency decides to provide additional discussion on If the agency decides to provide additional discussion on an issue in the form of a supplemental EIS (at its own an issue in the form of a supplemental EIS (at its own expense).expense).

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Judicial Review Exception Judicial Review Exception

Other agencies acting on the same proposal in a Other agencies acting on the same proposal in a permit review capacity are not bound by the lead permit review capacity are not bound by the lead agency’s SEPA determination.agency’s SEPA determination.

WA Ct. of Appeals ruled issuance of a MDNS by WA Ct. of Appeals ruled issuance of a MDNS by King County did not preclude the Shoreline King County did not preclude the Shoreline Hearings Bd. from denying proposal based on Hearings Bd. from denying proposal based on Shoreline Management Act requirements. See Shoreline Management Act requirements. See Bellevue Farm Owners Assoc. v. Wash. Bellevue Farm Owners Assoc. v. Wash. Shorelines Hearings BdShorelines Hearings Bd., 100 Wn. App. 341, 977 ., 100 Wn. App. 341, 977 P.2d 380 (2000)(P.2d 380 (2000)(rev. deniedrev. denied).).

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Statutory ExemptionsStatutory Exemptions

There are several statutory exemptions for There are several statutory exemptions for certain specific projects, as set forth in RCW certain specific projects, as set forth in RCW 43.21C.43.21C.

These actions include certain forest practices, These actions include certain forest practices, irrigation projects, waste discharge permits, irrigation projects, waste discharge permits, watershed and fish restoration, forest road watershed and fish restoration, forest road maintenance, school closures and annexation maintenance, school closures and annexation

RCW 43.21C should be reviewed in determining RCW 43.21C should be reviewed in determining whether a proposed action is exempt by statute whether a proposed action is exempt by statute due to the limited nature of the exemptions from due to the limited nature of the exemptions from a threshold determination and EIS requirements a threshold determination and EIS requirements

4949

Categorical Exemptions By RuleCategorical Exemptions By Rule

The SEPA rules also specify certain categorical The SEPA rules also specify certain categorical exemptions for projects which do not exemptions for projects which do not significantly affect the environment and thus do significantly affect the environment and thus do not require a threshold determination or any not require a threshold determination or any environmental documentation. WAC 197-11-720 environmental documentation. WAC 197-11-720

The proposed actions contained in Part Nine The proposed actions contained in Part Nine (WAC 197-11-800) are categorically exempt (WAC 197-11-800) are categorically exempt from threshold determination and EIS from threshold determination and EIS requirements, except as provided in WAC 197-requirements, except as provided in WAC 197-11-305.11-305.

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Categorical Exemptions, con’t. Categorical Exemptions, con’t.

The following categorical exemptions were adopted by rule and set The following categorical exemptions were adopted by rule and set forth at WAC 1897-11-800. These exemptions involve specific forth at WAC 1897-11-800. These exemptions involve specific actions that are not anticipated to cause significant adverse actions that are not anticipated to cause significant adverse environmental impacts:environmental impacts:

Minor new constructionMinor new construction Repair, remodeling and maintenance activitiesRepair, remodeling and maintenance activities Water rights appropriations of one cubic foot per second or less of Water rights appropriations of one cubic foot per second or less of

surface water, or of 2,250 gallons per minute or less of ground surface water, or of 2,250 gallons per minute or less of ground water, for any purposewater, for any purpose

Purchase or sale of real propertyPurchase or sale of real property Minor land use decisionsMinor land use decisions Open burning (except the adoption of plans, program or regulations Open burning (except the adoption of plans, program or regulations

by any agency incorporating general open burning standards)by any agency incorporating general open burning standards)

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Categorical Exemptions, con’t.Categorical Exemptions, con’t. The granting of variances under the Clean Air Act, RCW 70.94.181 The granting of variances under the Clean Air Act, RCW 70.94.181

extending applicable air pollution control requirements for one year extending applicable air pollution control requirements for one year or lessor less

The granting or denial of water quality certifications under the The granting or denial of water quality certifications under the Federal Clean Water Act Federal Clean Water Act

Activities of the state legislatureActivities of the state legislature Judicial activityJudicial activity Enforcement and inspectionsEnforcement and inspections Business and other regulatory licensesBusiness and other regulatory licenses Activities of agenciesActivities of agencies Financial assistance grants by one agency to anotherFinancial assistance grants by one agency to another The formation of local improvement districts, unless such formation The formation of local improvement districts, unless such formation

constitutes a final agency decision to undertake construction of a constitutes a final agency decision to undertake construction of a structure or facility not exemptstructure or facility not exempt

Information collection and research, including basic data collection, Information collection and research, including basic data collection, research, resource evaluation, requests for proposals (RFPs) research, resource evaluation, requests for proposals (RFPs)

5252

Categorical Exemptions ExceptionsCategorical Exemptions Exceptions

Even if an exemption is listed in Part Nine of the WAC as Even if an exemption is listed in Part Nine of the WAC as categorically exempt, it may still require a threshold determination categorically exempt, it may still require a threshold determination as set forth in WAC 197-11-305 and WAC 197-11-908 governing as set forth in WAC 197-11-305 and WAC 197-11-908 governing critical areascritical areas

Under WAC 197-11-908, each county/city may select certain Under WAC 197-11-908, each county/city may select certain categorical exemptions categorical exemptions that do not applythat do not apply in one or more critical in one or more critical areas designated in a critical areas ordinanceareas designated in a critical areas ordinance

Proposals that will be located within critical areas require a Proposals that will be located within critical areas require a threshold determination shall be made for all such actions, and an threshold determination shall be made for all such actions, and an EIS shall not be automatically required for a proposal merely EIS shall not be automatically required for a proposal merely because it is proposed for location in a critical areabecause it is proposed for location in a critical area

In addition, under WAC 197-11-305, an otherwise exempt proposal In addition, under WAC 197-11-305, an otherwise exempt proposal is not exempt if it is part of a series of related actions, some of which is not exempt if it is part of a series of related actions, some of which are not exempt or, if it is part of a series of related exempt actions are not exempt or, if it is part of a series of related exempt actions that together may have a probable significant adverse that together may have a probable significant adverse environmental impactenvironmental impact

5353

Research and Data Collection Research and Data Collection ExemptionExemption

Public Utility District No. 1 of Clark County v. Pollution Public Utility District No. 1 of Clark County v. Pollution Control Hearings Board,Control Hearings Board, 137 Wn. App. 150, 151 P.3d 137 Wn. App. 150, 151 P.3d 1067 (2007) 1067 (2007)

Challenge to information and data collection categorical exemption Challenge to information and data collection categorical exemption under WAC 197-11-800(17)under WAC 197-11-800(17)

Clark County PUD sought permit for authorization of testing to Clark County PUD sought permit for authorization of testing to collect data to use to monitor draw down time and to measure the collect data to use to monitor draw down time and to measure the groundwater draw down that occurs from pumping the well. groundwater draw down that occurs from pumping the well.

The PCHB found that the preliminary permit was not categorically The PCHB found that the preliminary permit was not categorically exempt from SEPA because the test well was not designed primarily exempt from SEPA because the test well was not designed primarily for data collection, but was rather intended to determine what steps for data collection, but was rather intended to determine what steps might be necessary to effectively contain the contaminated might be necessary to effectively contain the contaminated groundwater. groundwater.

5454

Public Utility District No. 1 of Clark Public Utility District No. 1 of Clark CountyCounty, con’t, con’t

Collection of groundwater data to assess Collection of groundwater data to assess whether the Fruit Valley was an appropriate whether the Fruit Valley was an appropriate location for groundwater extraction and a new location for groundwater extraction and a new well field project was not subject to SEPA well field project was not subject to SEPA challenge challenge

Ecology’s authority to regulate Washington's Ecology’s authority to regulate Washington's water code entitled it to deference with regard to water code entitled it to deference with regard to statutes and regulations dealing with water statutes and regulations dealing with water resources. resources.

Preliminary permit was exempt from SEPA Preliminary permit was exempt from SEPA because it fell within the categorical exemption because it fell within the categorical exemption for data collection and research.for data collection and research.

5555

Fluoridation Fluoridation

Clallam County Citizens for Safe Drinking Water v. Clallam County Citizens for Safe Drinking Water v. City of Port Angeles,City of Port Angeles, 137 Wn. App. 214, 151 P.3d 137 Wn. App. 214, 151 P.3d 1079 (2007)1079 (2007)

DNS by the City of Port Angeles Council fluoridate the public water DNS by the City of Port Angeles Council fluoridate the public water supply based on categorical exemption under WAC 197-11-845supply based on categorical exemption under WAC 197-11-845WA State Dept. of Health allows fluoridation of public water supplies WA State Dept. of Health allows fluoridation of public water supplies

WAC 197-11-845 exempts all actions under programs administered WAC 197-11-845 exempts all actions under programs administered

by the Dept. of Health from environmental review under SEPAby the Dept. of Health from environmental review under SEPA

5656

SEPA Appeal of Fluoridation, con’t.SEPA Appeal of Fluoridation, con’t.

The Citizens argued that even if the Dept of Health's actions in The Citizens argued that even if the Dept of Health's actions in approving and regulating fluoridation was categorically exempt, approving and regulating fluoridation was categorically exempt, WAC 197-11-845 does not also exempt the City's decision to WAC 197-11-845 does not also exempt the City's decision to fluoridatefluoridate

The Citizens also argued that the City's program was a part of a The Citizens also argued that the City's program was a part of a larger proposal including multiple agency actions, some of which larger proposal including multiple agency actions, some of which were exempt, and some of which were not, and that the entire were exempt, and some of which were not, and that the entire proposal was not exempt under WAC 197-11-305(1)(b)(i), which proposal was not exempt under WAC 197-11-305(1)(b)(i), which provides that a proposal, otherwise categorically exempt, will not be provides that a proposal, otherwise categorically exempt, will not be exempt if the proposal is a segment of a proposal that includes a exempt if the proposal is a segment of a proposal that includes a series of actions some of which are not categorically exemptseries of actions some of which are not categorically exempt

The Superior Court dismissed the appeal, finding the proposal The Superior Court dismissed the appeal, finding the proposal exempt. exempt.

The Court of Appeals affirmed the City's action as exempt under The Court of Appeals affirmed the City's action as exempt under WAC 197-11-845 WAC 197-11-845

5757

King County v. King County Hearing Examiner and Sno-King County v. King County Hearing Examiner and Sno-King Environmental Alliance,King Environmental Alliance, 135 Wn. App. 312, 144 P.3d 135 Wn. App. 312, 144 P.3d

345 (2006)345 (2006) King County (KC) final EIS, November, 2003 for Brightwater King County (KC) final EIS, November, 2003 for Brightwater

Sewage Treatment Facility in Maltby Sewage Treatment Facility in Maltby In January, 2004, Sno-King appeal denied by Hearing Examiner.In January, 2004, Sno-King appeal denied by Hearing Examiner. HE ordered KC to conduct investigative trenching and to prepare a HE ordered KC to conduct investigative trenching and to prepare a

supplemental EIS.supplemental EIS. KC and Sno-King appealed (KC proceeded to complete the KC and Sno-King appealed (KC proceeded to complete the

trenching and prepared a supplemental EIS). trenching and prepared a supplemental EIS). Sno-King and Snohomish County appealed the adequacy of the Sno-King and Snohomish County appealed the adequacy of the

SEIS and KC sought a writ of prohibition to stop the appeals. SEIS and KC sought a writ of prohibition to stop the appeals. KC and Snohomish County reached a settlement and Snohomish KC and Snohomish County reached a settlement and Snohomish

County proceeded to issue permits to begin construction of the County proceeded to issue permits to begin construction of the facility with the agreed upon mitigation.facility with the agreed upon mitigation.

The KC Superior Court denied the writ of prohibition. The KC Superior Court denied the writ of prohibition. KC appealed and the Court of Appeals reversed and remanded KC appealed and the Court of Appeals reversed and remanded

case.case.

5858

Brightwater appeal, con’t.Brightwater appeal, con’t. The Ct. ruled the hearing examiner exceeded his jurisdiction by conditioning The Ct. ruled the hearing examiner exceeded his jurisdiction by conditioning

the denial of Sno-King’s appeal on KC’s completion of trench investigations the denial of Sno-King’s appeal on KC’s completion of trench investigations and a SEIS to address the impacts from a potential earthquake. and a SEIS to address the impacts from a potential earthquake.

HE’s authority limited to determining the adequacy of final EIS and that Sno-HE’s authority limited to determining the adequacy of final EIS and that Sno-King was prohibited from appealing the SEIS once KC applied for the King was prohibited from appealing the SEIS once KC applied for the project permits – despite the policy arguments that any entity could short project permits – despite the policy arguments that any entity could short circuit SEPA by applying for permitscircuit SEPA by applying for permits

SEPA determinations must be consolidated with the appeal of the SEPA determinations must be consolidated with the appeal of the underlying action - except that appeals of procedural determinations by the underlying action - except that appeals of procedural determinations by the agency may be allowed prior to submitting an application for a project agency may be allowed prior to submitting an application for a project permit. RCW 43.21C.075(3)(b)(ii) and WAC 197-11-680(3)(a)(vi)(B)permit. RCW 43.21C.075(3)(b)(ii) and WAC 197-11-680(3)(a)(vi)(B)

The general rule, the Ct. stated, is that SEPA determinations are not The general rule, the Ct. stated, is that SEPA determinations are not appealed separately, with only a few narrow exceptions.appealed separately, with only a few narrow exceptions.

Thus, the hearing examiner exceeded his authority to require a SEIS, did Thus, the hearing examiner exceeded his authority to require a SEIS, did not have jurisdiction over Sno-King’s appeal of the SEIS and lacked not have jurisdiction over Sno-King’s appeal of the SEIS and lacked jurisdiction over the appeal once KC applied for a project permit under the jurisdiction over the appeal once KC applied for a project permit under the SEPA statute and regulations noted above. SEPA statute and regulations noted above.

The Ct. held the writ should have been issued and the SEIS appeal The Ct. held the writ should have been issued and the SEIS appeal dismisseddismissed

5959

SEPA REQUIREMENTS FOR SEPA REQUIREMENTS FOR HAZARDOUS WASTES CLEANUP HAZARDOUS WASTES CLEANUP Washington Model Toxics Control Act (RCW Washington Model Toxics Control Act (RCW

70.105D) and Ecology regulations at WAC 173-70.105D) and Ecology regulations at WAC 173-340 govern all private or public hazardous waste 340 govern all private or public hazardous waste investigations and cleanupsinvestigations and cleanups

Remediation technologies are invasive and Remediation technologies are invasive and physically alter the environment (soils, physically alter the environment (soils, sediments, groundwater, surface water, natural sediments, groundwater, surface water, natural resources, wildlife, fish, etc.)resources, wildlife, fish, etc.)

SEPA is triggered at hazardous waste sites by SEPA is triggered at hazardous waste sites by Ecology’s decision or action to authorize or Ecology’s decision or action to authorize or conduct a cleanupconduct a cleanup

6060

MTCA ActionsMTCA Actions

No Further Action determination – issued No Further Action determination – issued by Ecology after investigation and report by Ecology after investigation and report completed. SEPA not triggered.completed. SEPA not triggered.

Remediation Orders, Consent Decrees, Remediation Orders, Consent Decrees, Voluntary Cleanup Actions are subject to Voluntary Cleanup Actions are subject to SEPASEPA

SEPA is triggered by cleanup action SEPA is triggered by cleanup action (Cleanup Action Plan) that could affect the (Cleanup Action Plan) that could affect the environmentenvironment

6161

SEPA – MTCA CoordinationSEPA – MTCA Coordination

Ecology is both lead agency under SEPA and Ecology is both lead agency under SEPA and MTCA, and is responsible for coordinating the MTCA, and is responsible for coordinating the requirements of each statute and implementing requirements of each statute and implementing regulations to avoid duplicationregulations to avoid duplication

Ecology will issue the Cleanup Action Plan and Ecology will issue the Cleanup Action Plan and Environmental Impact StatementEnvironmental Impact Statement

Documents may be combined or cross Documents may be combined or cross referenced (e.g., combine a draft RI/FS and EIS)referenced (e.g., combine a draft RI/FS and EIS)

Ecology may issue simultaneous notices and Ecology may issue simultaneous notices and public review and comment periodspublic review and comment periods

6262

SEPA – MTCA CoordinationSEPA – MTCA Coordination

Ecology Guidance: Toxics Cleanup Program Ecology Guidance: Toxics Cleanup Program Policy #130A Policy #130A

SEPA Threshold Determination will be issued SEPA Threshold Determination will be issued with RI/FS or through investigation process (no with RI/FS or through investigation process (no later than proposed Cleanup Action Plan)later than proposed Cleanup Action Plan)

Environmental Checklist review at RI/FS scoping Environmental Checklist review at RI/FS scoping phasephase

DS or scoping notice can be issued prior to DS or scoping notice can be issued prior to RI/FS, but a DNS cannot be issued before a RI/FS, but a DNS cannot be issued before a RI/FSRI/FS

6363

Keep Your Eye on the BallKeep Your Eye on the Ball

6464

Notice and ProcessNotice and Process

SEPA RegistrySEPA Registry Ecology WebsiteEcology Website State Agency SEPA officials and staffState Agency SEPA officials and staff SignageSignage PublicationPublication Personal NotificationPersonal Notification

6565

Economic Impacts Analysis or DNSEconomic Impacts Analysis or DNS

6666

Pullman Alliance for Responsible Development v. CLC Pullman Alliance for Responsible Development v. CLC Associates of Spokane ValleyAssociates of Spokane Valley, WA Court of Appeals, Div. , WA Court of Appeals, Div.

3, June 3, 2008 (unrecorded decision)3, June 3, 2008 (unrecorded decision) SEPA DNS and Site Plan approvalSEPA DNS and Site Plan approval ChecklistChecklist Traffic Impact Analysis (TIA)Traffic Impact Analysis (TIA) 35 conditions35 conditions Appeal based on inadequate findings of Appeal based on inadequate findings of

fact and conclusions of lawfact and conclusions of law Sufficient analysis of traffic by DOT and Sufficient analysis of traffic by DOT and

CityCity

6767

Wal-Mart DNSWal-Mart DNS

Hearing Examiner documentation of 50 Hearing Examiner documentation of 50 FoFFoF

Deference to Local AgencyDeference to Local Agency Sufficiency of evidence and mitigationSufficiency of evidence and mitigation Fiscal Impacts unprovenFiscal Impacts unproven Economic competition speculative based Economic competition speculative based

on testimony of City staffon testimony of City staff National urban blight syndrome irrelevant National urban blight syndrome irrelevant

6868