Selected Recent Court Decisions - State Environmental Policy Act

1. Clallam County Citizens for Safe Drinking Water v. City of Port Angeles, 137 Wn. App. 214 (2007).

   A city council's decision to fluoridate the public water supply is categorically exempt from environmental review under SEPA.  However, nothing in SEPA or the SEPA rules precludes an agency from issuing a DNS on a project determined to be categorically exempt.

2. Regional Transit Authority v. Miller, 156 Wn.2d 403 (2006).

   Condemnation proceedings are not subject to SEPA.

3. In re Jurisdiction of King County Hearing Examiner, 135 Wn. App. 312 (2006).

   WAC197-11-600(3)(b)(ii) directs an agency to determine whether a supplemental EIS is required; it does not grant the hearing examiner the authority to order a supplemental EIS.  Also, RCW 43.21C.240 allows counties and cities to determine that a project's environmental impact will be mitigated through its own development regulations, rather than through the EIS process, to meet SEPA requirements. 

4. City of Olympia v. Thurston County Bd. of Comm'rs, 131 Wn. App. 85 (2005), review denied, 158 Wn.2d 1003 (2006).

   Where a mitigation measure identified in a mitigated determination of nonsignificance is required as a condition of plat approval, review is according to procedures for review of the plat, not according to proceduress for seeking review of the threshold determination.  A mitigation measure is not a threshold determination under SEPA rules.

5. Boss v. Department of Transportation, 113 Wn. App. 543 (2002).

   When an adequate EIS has been previously prepared under the National Environmental Policy Act (NEPA) for the same project, a SEPA EIS is not required, under RCW 43.21C.150.

6. Thornton Creek Legal Defense Fund v. Seattle, 113 Wn. App. 34 (2002).

   A proposed development's effect upon a hypothetical habitat restoration project is not an adverse environmental impact under SEPA.  Also, the city's circulation of a "notice of availability" of an EIS addendum rather than a "notice of adoption" of the addendum, as required by law, was harmless error. 

7. Boehm v. City of Vancouver, 111 Wn. App. 711(2002).  

   An analysis of the cumulative impacts of a proposed project is not required under SEPA unless (1) there is some evidence that the project will facilitate future action that will result in additional impacts or (2) the project is dependent on subsequent proposed development. A project's cumulative impacts that are merely speculative need not be considered.

8. Moss v. City of Bellingham, 109 Wn. App. 6 (2001), review denied, 146 Wn.2d 1017 (2002).

   The Integration of Growth Management and Environmental Review Act (Laws of 1995, ch. 347) seeks to avoid duplicative environmental analysis and substantive mitigation of development projects by assigning State Environmental Policy Act a secondary role to: (1) more comprehensive environmental analysis in plans and their programmatic environmental impact statements; and (2) systematic mitigation of adverse environmental impacts through local development regulations and other local, state, and federal environmental laws.  One of the provisions of that Act, RCW 43.21C.240, as implemented by WAC 197-11-158, substantially streamlines the threshold determination process for cities and counties planning under the GMA by authorizing the SEPA official to rely on existing plans, laws, and regulations in meeting SEPA requirements.  Thus, the development of a large scale subdivision within a UGA does not, ipso facto, require the preparation of an EIS. Following enactment of the Integration of Growth Management and Environmental Review Act, an EIS is not required for a major subdivision development within a UGA if the conditions of plat approval imposed pursuant to local planning and zoning laws and local, state, and federal development or environmental laws adequately mitigate all the significant adverse environmental impacts of the proposed development.

9. Wells v. Water Dist. 10, 105 Wn. App. 143 (2001).

   An agency is not required to supplement an existing final environmental impact statement (FEIS) where new information regarding a project's potential impacts does not establish that significant adverse impacts are probable, meaning reasonably likely to occur. The mere possibility of those impacts occurring is not sufficient to require a supplement to the FEIS. A claim that "new information" requires supplementation of an FEIS is subject to the 21-day limitation in RCW 43.21C.080(2)(a) for challenging a governmental action under SEPA. A challenge after that 21-day period is not allowed unless there has been a substantial change in the proposed action that would likely have new significant adverse impacts or an impact previously identified as needing further evaluation.

10. West Coast, Inc. v. Snohomish County, 104 Wn. App. 735 (2000).

    A developer granted preliminary plat approval for which a final and binding mitigated determination of nonsignificance (MDNS) has been issued may not undermine that determination by seeking revision of the preliminary plat in an attempt to remove an express condition of plat approval on which the MDNS is based.

11. Bellevue Farm Owners Assoc. v. Shorelines Hearings Bd., 100 Wn. App. 341 (2000).

    An agency has jurisdiction under SEPA if it must issue permits or approvals for the project. WAC 197-11-714(3). Another agency with SEPA jurisdiction cannot change a DNS unless it assumes lead agency status. WAC 197-11-390(2)(b). If another agency assumes lead status under WAC 197-11-948(1), the new lead agency can review the underlying materials and reverse the first lead agency's DNS. The new lead agency can then order preparation of an EIS. WAC 197-11-948(2). Thus, the county's DNS for a proposed shoreline development did not preclude the Shorelines Hearings Board from later denying the permit for proposed development because of environmental impact.

12. King County v. Cent. Puget Sound Bd., 138 Wn.2d 161 (1999).

    SEPA directs that "alternatives to the proposed action" be included in an EIS.  Also, SEPA rules mandate consideration of "reasonable alternatives." which are defined "reasonable alternatives" as less environmentally costly action that could feasibly attain or approximate a proposal's objectives.  An alternative considered for purposes of an EIS need not be certain or uncontested, it must only be reasonable.  Thus, consideration of a one-acre lot subdivision as an alternative to the proposed urban planned development is permissible, even if the one-acre alternative may not legally be available as an option. 

13. Saldin Sec. v. Snohomish County, 134 Wn.2d 288 (1998).

    Property owners who proposed to develop nearly 100 acres into separate residential subdivisions filed petitions for constitutional writs of certiorari seeking judicial review of the county council's decision requiring preparation of a limited EIS with respect to the issue of potential groundwater contamination. The county deferred action on the preliminary plat applications until completion of the EIS. SEPA, specifically RCW 43.21C.075(6)(c), requires that judicial review of any SEPA determination be coupled with an appeal of the final action on an application. The court held that SEPA did not provide effective review of the county council's requirement of an EIS, and that a constitutional writ of review is available if the project proponent alleges facts that, if verified, indicate that the council's decision was illegal or arbitrary and capricious. Here, the project proponent did not allege such facts.

14. Hayes v. City of Seattle, 131 Wn.2d 706 (1997). 

    The city's decision to condition the grant of a master use permit on a reduction in the length of the proposed building was conclusory and, contrary to SEPA, did not specifically describe the adverse impact of the project or explain how reducing the size of the project would mitigate any such adverse impact.

15. Kiewit Construction v. Clark County, 83 Wn. App. 133 (1996).

    Kiewit appealed the county's decision to require a supplemental EIS for a proposed asphalt manufacturing plant or, alternatively, to require Kiewit to construct a ramp from the site to a nearby freeway as a condition of granting the requested permit. The county required the supplemental EIS because it deemed the original EIS to be inadequate. The court, in upholding the county's decision, cited the rule that the legal adequacy of an EIS is tested under a rule of reason. Under this rule, an EIS is adequate if it provides a reasonably thorough discussion of the significant aspects of theprobable environmental consequences of the proposed activity and presents sufficient information to allow the governmental decision maker to make a reasoned choice among alternatives. In addition to deciding that the requirement of the supplemental EIS satisfied this test, the court concluded that approval of the permit conditioned on the construction of a freeway ramp was a valid alternative to the supplemental EIS requirement.

16. Opal v. Adams County, 128 Wn.2d 869 (1996).

    The plaintiff land preservation organization appealed the county's decision to grant a permit authorizing the use of a site in the county for a proposed regional solid waste landfill and recycling facility. Among other things, the plaintiff argued that the EIS should have included consideration of offsite alternatives. The court disagreed, concluding that this was a private project for which SEPA does not require consideration of alternatives. In looking at whether this was a public or private project, the court considered (1) which entity primarily sponsored or initiated the project and (2) whether the public entity is seeking to fulfill its responsibility to perform a traditional governmental function by way of a private project. The court also concluded that phased environmental review of this project was appropriate.