SEPA Rule Changes
by Bob Meinig, MRSC Legal Consultant
March 1998
The Department of Ecology (DOE) adopted, effective November 10, 1997, revisions to the State Environmental Policy Act (SEPA) rules, chapter 197-11 WAC. DOE made these revisions, the most extensive to the SEPA rules since their adoption in 1984, primarily in response to 1995 regulatory reform legislation (ESHB 1724) and 1997 legislation (ESB 6094) that enacted Land Use Study Commission recommendations concerning the Growth Management Act. The revisions add new rules and amend existing ones, and are summarized below.
What do the SEPA rule revisions mean for cities and counties?
All cities and counties should have in place local SEPA rules to guide their review of actions affecting the environment. Under SEPA, local governments have 180 days to amend their local SEPA rules to be consistent with DOE rule revisions. The deadline for local governments to amend their local SEPA rules in response to the DOE rule revisions is May 9, 1998.
What SEPA rules do cities and counties follow until they amend their local SEPA rules?
Under SEPA, existing local rules continue to be effective until the adoption of new, amended rules, provided that those new rules are adopted within the 180-day period. However, some commentators have suggested that local governments cannot follow an existing local rule that directly contradicts the new DOE rules.
Regardless of when local rules are amended, local governments must comply with the 1995 and 1997 legislation that the new DOE rules are intended to implement. For example, cities and counties already must comply with the limitation of holding no more than one open record hearing and one closed record appeal for project permit applications, a limitation that DOE incorporates into its rule revisions for applications that are subject to SEPA.
What happens if cities and counties do not amend their SEPA rules within the 180-day period?
There are no specific statutory penalties for non-compliance with the 180-day deadline. However, a local government's SEPA review of a proposed land use action can be challenged on the basis of that review being inconsistent with SEPA and the DOE rules. In short, a city or county's land use decisions that are subject to SEPA may be in legal jeopardy because of a failure to timely amend local SEPA rules.
How have the SEPA rules been changed by the recent revisions?
The revised DOE rules address four main areas: (1) combining the requirements for project permit application review and SEPA review into one integrated review process; (2) administrative SEPA appeals; (3) "planned actions," designated as such by cities and counties planning under the Growth Management Act (GMA); and (4) categorical SEPA exemptions.
- Integrated Review. Chapter 36.70B RCW, relating to local
project permit review, was enacted in 1995 and requires cities and counties
to integrate their project permit and SEPA review processes, including administrative
appeals.
As part of this integrated process, GMA cities and counties may decide when making a threshold determination that some or all of the specific environmental impacts of a proposed project and their mitigation have been adequately analyzed by their development regulations or comprehensive plan, or other local, state, or federal laws or rules. The SEPA rules address this in a new rule, WAC 197-11-158.
The project permit review process in chapter 36.70B RCW also addresses the integration of the threshold determination process with the project permit application requirements, including notice. See WAC 197-11-310.
One problem with the notice of application process in RCW 36.70B.110 is that it was amended twice by the 1997 legislature, and each amendment is different and does not refer to the other. DOE has decided to await legislative action to resolve the conflict. However, in the meantime, the revised SEPA rules contain a new optional determination of nonsignificance (DNS) process. The optional DNS process allows a GMA city or county to use an integrated comment period to obtain comments on a notice of application for a project permit and on the likely DNS for the proposal. Usually a sEcond comment period would not be required when the DNS is then issued. This optional process can be used when the city or county is reasonably certain that the project will have no significant impacts or that mitigation will reduce impacts to a nonsignificant level. This optional process is set out in WAC 197-11-355.
- Administrative Appeals. The revised SEPA rules address
the optional administrative appeal process in WAC 197-11-680 relating to a
local government's SEPA review decision. The revisions incorporate the chapter
36.70B RCW limitation of having no more than one open record hearing and one
closed record appeal for permit decisions. They also provide, with some exceptions,
for consolidation of any allowed appeals of SEPA determinations with a hearing
or appeal on the underlying action. Time limits for administrative appeals
are also addressed in the revised rules.
Note: Due to an error, the version of WAC 197-11-680(Appeals) in WSR 97-21-030, is incorrect. The correct version of WAC 197-11-680 is found in an emergency rule at WSR 97-23-013.
- Planned Actions. Under 1995 legislation, GMA cities and
counties can by ordinance or resolution designate "planned actions."
"Planned actions" are defined as having significant impacts already
addressed in an EIS prepared in conjunction with a GMA comprehensive or subarea
plan or with a fully contained community, a master planned resort, a master
planned development, or aphased project. Planned actions must be located within
an urban growth area, may not be considered "essential public facilities,"
and must be consistent with the comprehensive plan. Because of this earlier
SEPA review, a threshold determination or an EIS is not required for a proposed
project that qualifies as a planned action, although an environmental checklist
still must be submitted.
For planned actions, a city or county reviews the proposed project and verifies that it is consistent with the planned action designated by ordinance or resolution and that the environmental impacts have been adequately addressed. The city or county then continues with project permit review.
New SEPA rules in WAC 197-11-164 through 197-11-172 provide details on how the planned action process is implemented.
- Categorical Exemptions. Although DOE is currently engaged
in preparing proposed revisions to the list of categorical SEPA exemptions
in WAC 197-11-800, it made a few additions to the exemptions in its revised
SEPA rules that were effective last November.
Two of these exemptions are of particular significance for cities and counties, although they do nothing more than incorporate prior statutory changes. One is the 1994 statutory exemption for city annexations. The other exemption is for certain "personal wireless service facilities," which mirrors the provisions of RCW 43.21C.0384, enacted in 1996.
What help does DOE provide in revising local SEPA rules?
DOE's Web site provides "interim guidance" on its revised rules. This interim guidance, found at http://www.ecy.wa.gov/programs/sea/sepa/guidncn4.htm provides a brief discussion of the primary changes in the rules and the background for those changes.
DOE is currently in the process of revising its SEPA Handbook to incorporate and provide detailed discussion and guidance on the rule changes. The revised handbook will, according to DOE, be available in "early 1998."
DOE's Web site also provides a draft revision to the Model SEPA Ordinance, updated as of March 9, 1997, at http://www.ecy.wa.gov/programs/sea/sepa/173-806.html. Pursuant to statutory direction, in 1984 DOE adopted a "model ordinance" (chapter 173-806 WAC) that provides local SEPA regulations and procedures that cities and counties can adopt to comply with the DOE rules. Some cities and counties adopted the DOE model ordinance, with modifications, as their local SEPA rules. If your city or county has adopted the model ordinance or is thinking of doing so, you will want to pay attention to DOE's revisions. As its draft ordinance is reviewed and improved, DOE intends to post updated versions on its Web site.
Where can you get a copy of the revised SEPA regulations?
If you subscribe to the Washington State Register, the revised rules are at WSR 97-21-030 and WSR 97-23-013 (containing the corrected version of WAC 197-11-680). If you have Internet access, DOE has posted the revised rules at http://www.ecy.wa.gov/programs/sea/sepa/197-11_toc.html, which include the corrected version of WAC 197-11-680. In addition, DOE mailed copies of the new rules to all city and county planning directors in December 1997.
However, if your city or county does not have a copy of the new rules or does not receive the State Register or have Internet access, you can order a copy of the new SEPA rules from Neil Aaland at DOE at (306)407-7045.
MRSC can help too! As part of its usual "clearinghouse" function, MRSC will be collecting city and county SEPA rules that have been revised to be consistent with the new DOE rules. We ask that you send or e-mail MRSC your revised SEPA rules as soon as they are completed so that we can share them with other cities and counties.
Also, our professional consultant staff is available to field inquiries concerning a city or county's obligations regarding the revised SEPA rules.