SEPA Categorical Exemptions for Minor New Construction

Previously published in a listserv email from August 2010

Question:

If a proposed residential construction is exempt from SEPA, but the excavation and fill associated with the construction exceeds the maximum of the threshold in the “landfill and excavation” exception threshold, is SEPA required? If not, why doesn’t the provision in WAC 197-11-305 apply because part of the project is non-exempt?

Answer:

The City of Edmonds Memo provides an example of how a local government agency changed their interpretation of the exemptions.

The SEPA rules and statute include exemptions that apply to either the type of proposal/activity or the type of agency action. For both scenarios, it’s important to define the total proposal accurately to understand what activities are included in the applicable exemption.

The list of SEPA exemptions for “minor new construction” (WAC 197-11-800(1)) cover the “activity” of constructing a residence, office, shed, parking lot, a landfill or excavation type of proposal. Ecology views the list as mutually exclusive, in part due to the preface to the list:

The exemptions in this subsection apply to all licenses required to undertake the construction in question, except when a rezone or any license governing emissions to the air or discharges to water is required.

A proposal to build or locate a house is considered a “residential” type of “construction in question” under subsection (b)(i) and not an excavation activity pursuant to (b)(v). Therefore the main “exceptions” to a residential construction exemption involve situations where a rezoning, a forestry conversion (via statutory provision), lands covered by water and issuance of air or water discharge permits (see WAC 197-11-800(1)(a).

The “minor land use decision” exemption can also be misinterpreted. This exemption applies to a specific agency decision – and not the category of development activity, but these types of land-use decisions are often a combination of non-project land use approvals and project-level development activities. Technically, if separate permits or other approvals are needed from the lead agency or other agencies for the same proposal, then those “agency actions” would not be covered under this exemption (but could be covered under another exemption such as “minor new construction”). The provision in WAC 197-11-305(1)(b)(i) could also require SEPA review on the entire proposal –including the short plat decision if there is a non-exempt permit involved.