Introduction

A. Integrated Local Project Review

1. Background

B. Optional DNS Process

C. Administrative Appeals

D. Planned Actions

1. Background

2. What are the Advantages and Disadvantages of the Planned Action Approach?

3. Steps in Using the Planned Action Approach

 The Department of Ecology (Ecology) adopted revisions to the State Environmental Policy Act (SEPA) Rules, Chapter 197-11 WAC, on October 9, 1997 (with an effective date of November 10, 1997). These amendments were developed in conjunction with the Department of Community, Trade and Economic Development and with the assistance of an Advisory Committee composed of representatives from different interest groups. To assist agencies in implementing these amendments, Ecology is substantially revising the SEPA Handbook to provide guidance on these changes and other requirements of SEPA. The revised Handbook will not be available until early 1998, so this interim guidance is intended to assist agencies in understanding the more significant changes to the SEPA Rules.

 One important note: this interim guidance is only intended to provide a brief discussion of and introduction to the primary changes. More detailed discussion and guidance will be available in the revised SEPA Handbook. If this interim guidance stimulates further questions or suggestions for discussion topics in the Handbook, please let us know.

 The SEPA Rule amendments incorporate changes from 1995 legislation (ESHB 1724) and from 1997 legislation (ESB 6094) which:

• Require counties and cities to combine the requirements for project permit review and environmental review into one integrated project review process.
• Require counties and cities planning under the Growth Management Act (GMA) to analyze the consistency of a proposed project with the applicable development regulations or comprehensive plan as part of the project review process.
• Reaffirm that cities and counties may determine that development regulations, comprehensive plans, or other local, state or federal requirements adequately address environmental impacts, and add the concept that "adequately addressing" includes designating impacts as acceptable.
• Limit administrative appeals and modify the time limit for filing judicial appeals.
• Create a "planned actions" category that allows GMA counties and cities to conduct environmental review earlier in the planning process (in conjunction with comprehensive plan elements or master plans), with abbreviated review at the project permit level.

 In addition, as an outgrowth of the rule amendment process, an optional Determination of Nonsignificance (DNS) process has been developed which allows one single integrated comment period on the notice of application and a proposal to issue a DNS, if certain requirements are met.

 If you have questions on the amendments to the SEPA Rules, please contact:

 Neil Aaland Barbara Ritchie

(360) 407-7045 (360) 407-6922

naal461@ecy.wa.gov brit461@ecy.wa.gov

 If you have special accommodation needs, please contact Neil Aaland at (360) 407-7045 (voice only) or (360) 407-6006 (TDD).

 1. Background

Many of the recent amendments to the SEPA Rules relate to the Local Project Review Act, Chapter 36.70B RCW. Signed into law in 1995, this new statute requires all cities and counties to combine the project permit review and environmental review processes and to consolidate administrative appeals.

 Counties and cities planning under the Growth Management Act must analyze a project for consistency with applicable development regulations. They may determine that the applicable development regulations, or in the absence of applicable development regulations the adopted comprehensive plan, address some or all of the environmental impacts of a project. In addition, their local project review process must include specific procedural requirements and must meet a 120-day time limit for making a decision on the proposed project.

2. Integrating Environmental Review with the Permit Process: Analyzing Project Consistency and Environmental Impacts

 The Local Project Review Act requires all local governments to combine environmental review with permit review through an integrated project review process, and directs GMA counties and cities to rely on existing land use planning decisions. Environmental review should be integrated with – and not duplicate – other local, state, and federal requirements. Environmental review of projects should focus on environmental impacts and possible mitigation measures not previously addressed in the planning process or in local, state, and federal laws and regulations. SEPA’s substantive authority should only be used when the impacts cannot be adequately addressed by existing laws.

 The Local Project Review Act requires GMA counties and cities to analyze the consistency of a proposed project with the applicable development regulations or, in the absence of applicable regulations, the adopted comprehensive plan. Consistency analysis and determinations of whether environmental impacts have been addressed involves much of the same information (RCW 36.70B.030 and 040, and RCW 43.21C.240).

 Consistency must be analyzed in the project review process by considering four factors found in the GMA county’s or city’s comprehensive plan or development regulations:

 (1) The type of land use allowed;

2. The level of development allowed, such as units per acre or other measures of density;
3. Infrastructure, such as the adequacy of public facilities and services to serve the proposed project; and
4. The characteristics of the proposed development (as measured by the degree to which the project conforms with specific development regulations or standards).

 If the project is found to be consistent with the type of land use, the density of residential development in urban growth areas, and the availability and adequacy of public facilities, these planning decisions cannot be reconsidered or appealed during project review. Instead, project review focuses on the project's compliance with the development regulations (e.g. critical area ordinances, building codes, street development standards). If the project is not consistent with the development regulations and comprehensive plan, the project is either conditioned to make it consistent or denied (RCW 36.70B.030 and 040)

 The Local Project Review Act does not require documentation of consistency, dictate an agency’s procedures for considering consistency, or limit an agency from asking more specific or related questions about the four categories of consistency. However, agencies are strongly encouraged to begin analyzing a project for consistency early in the project review process and to provide some method to document that analysis, as they deem appropriate.

 The same bill that created the Local Project Review Act added a new section to SEPA to emphasize that the GMA county or city should rely on existing authority before invoking SEPA substantive authority. This section allows a GMA county or city to determine that some or all of a project’s environmental impacts have been "adequately addressed" by their development regulations, comprehensive plan, or other local, state, or federal laws or rules. "Adequately addressed" means having identified the impacts and avoided, otherwise mitigated, or designated as acceptable the impacts associated with certain levels of service, land use designations, development standards, or other land use planning decisions required or allowed under the GMA (RCW 43.21C.240 and WAC 197-11-158).

 3. Procedural Requirements

 All counties and cities must adopt an integrated project review process that combines environmental review with other permit review procedures. They must also adopt appeal procedures that allow no more than one open record hearing and one closed record appeal.

 The integrated project review process developed by GMA counties and cities must include the following elements:

 A. Determination of Completeness. Within 28 days after receiving a permit application, the GMA county or city must determine whether the application meets the submittal requirements of the agency and is sufficient for continued processing. (RCW 36.70B.070)

 B. Notice of Application. Within 14 days after determining an application is complete, the GMA county or city must issue a notice of application and invite other agencies and the public to comment on the proposed project. The comment period is 14 to 30 days, depending upon the time period chosen by the county or city in its implementing ordinance. This early notice allows agencies and the public to identify potential areas of concern before decisions are made on the proposed project. (RCW 36.70B.110)

 C. Notice of Decision. Within 120 days after determining an application is complete, the GMA county or city must issue a notice of final decision on the project permit application. (RCW 36.70B.090 and 36.70B.130)

 4. Issue: Threshold Determination and Notice of Application

 There are a number of restrictions on when a SEPA document can be issued if the lead agency is a GMA county or city. When ESHB 1724 created the Local Project Review Act, it allowed a Determination of Significance (DS) to be combined with the notice of application. However, it prohibited the issuance of a DNS prior to the close of the comment period on the notice of application.

 During the 1997 legislative session the Legislature passed, and the Governor signed, two bills amending the section of RCW 36.70B.110 relating to the timing of the threshold determination.

•  SSB 5462 was passed first and amended RW 36.70B.110 to allow the threshold determination to be issued with the notice of application.
• ESB 6094 was passed second and amended the same section, but still retained the prohibition against issuing a determination of nonsignificance prior to the close of the comment period on the notice of application.

 Since these two bills amended the same section of the statute, with different results and without referring to each other, it is unclear what the legislature intended. Without either a court decision or legislative direction, there is no clear way to resolve the conflict between these two laws. Therefore, Ecology did not address this issue in the amended SEPA Rules and is awaiting legislative clarification. In the meantime, the SEPA Rules contain a new optional DNS process that is described in Section B below and contained in WAC 197-11-355. Using this process can provide a way to integrate notice of application and DNS comment periods under certain circumstances.

 The Local Project Review Act requires GMA counties and cities to circulate a "notice of application" early in the project review process. A DNS cannot be issued before the close of the public comment period (14-30 days) on the notice of application. This restriction results in two public comment periods when a comment period is required for the DNS.

 Many of the projects subject to the SEPA process have few or no impacts, and project reviewers for cities and counties can quickly determine that fact. For such projects, waiting to issue a DNS until the close of the comment period on a notice of application delays the project review process with no apparent benefit. Therefore, a new optional DNS process has been added to the SEPA Rules. This allows a GMA county/city to combine the comment period for a DNS with the comment period on the notice of application and have one single integrated comment period. When the DNS is finally issued, no additional comment period is required.

 The optional DNS process can be used when the lead agency is reasonably certain that there are no significant impacts associated with a project, or that mitigation measures will reduce impacts to a nonsignificant level. The agency must state on the notice of application that the lead agency expects to issue a DNS for the proposal, and that this may be the only opportunity to comment on the environmental impacts of the proposed project. After the close of the comment period, the agency reviews any comments and issues the DNS (or DS/scoping notice if significant environmental impacts are identified). (Specific requirements for the optional DNS process are contained in WAC 197-11-355.)

 If the lead agency uses the optional DNS process, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application. Assumption of lead agency would occur if the agency with jurisdiction believes that the proposed project is likely to have significant adverse environmental impacts and that an EIS is needed to evaluate the impacts. This is the only opportunity for an agency with jurisdiction to assume lead agency status during the optional DNS process. (WAC 197-11-948)

 The lead agency should consider these points before deciding to use the optional DNS process.

•  The optional DNS process is intended for projects that can be reviewed prior to issuing a notice of application. If the proposed project is complex, or environmental review cannot be completed before issuing a notice of application, the standard DNS process should be used.
• The notice of application must contain sufficient information on the proposed project, including proposed mitigation measures, to allow the other agencies and the public to understand the proposal and comment on any areas of concern. This is particularly important since this may be the only opportunity for the other agencies and public to comment on the potential impacts of the proposed project.
• The DNS is not actually issued until the comment period ends on the notice of application. Instead, the lead agency states on the notice of application that it likely to issue a determination of nonsignificance later in the project review process. This complies with the restriction in RCW 36.70B.110(6)(a).

 SEPA allows both an optional agency administrative appeal and a judicial appeal under RCW 43.21C.075. The 1995 Legislature (ESHB 1724) and the 1997 Legislature (ESB 6094) extensively amended this section. The following discussion focuses on the amendments to the administrative appeal procedures and does not address the judicial appeal process.

 Agencies are not required to provide an administrative appeal process. If an agency offers an administrative appeal, the agency must specify by rule, ordinance or resolution that the appeal is available. This should include when and how to file an appeal, what filing fees are required, and any other information needed by the public to understand how to use the appeal process. Several types of administrative appeal are possible and are described in the table below. Appeals related to SEPA are limited to review of a final threshold determination (DS or DNS) or final EIS. Appeals of the intermediate steps, such as determination of lead agency, scoping, and the adequacy of a draft EIS, are not allowed. 

 Each agency has the option of providing an agency administrative appeal. If an agency offers an administrative appeal, the agency must establish the procedures and timing for the appeal. Anyone interested in appealing a particular project should contact the lead agency to determine what agency administrative appeal is available, if any. The basic requirements for administrative appeals are summarized below.

•  Subject to some exceptions, each county and city may offer no more than one open record hearing and one closed record appeal on the underlying governmental action (e.g., permit decision, zoning, etc.). An open record hearing is one held by the agency to hear testimony and take evidence/information. The purpose is to create a record that will be the basis for a decision on the project. The open record hearing can occur either before an agency makes a decision on the underlying governmental action (an "open record predecision hearing") or after the agency makes a decision (an "open record appeal hearing"). A closed record appeal is an appeal based only on the record created in the open record hearing. No new issues can be raised that were not addressed in the open record hearing.
• A SEPA appeal must usually be consolidated with a hearing or appeal on the underlying governmental action. If an agency allows a SEPA administrative appeal, it must be heard at a proceeding where a record is created. Therefore, for local governments, it must be combined with the one open record hearing allowed under the Local Project Review Act. Exceptions to this requirement are:
• An appeal of a determination of significance.
• An appeal of a SEPA procedural determination for a nonproject action.
• An appeal of a SEPA procedural determination when an agency is a project proponent, or is funding a project, and chooses to conduct its review under SEPA prior to submitting an application for a project permit.
• An appeal of a non-elected official’s decision to a local legislative authority under RCW 43.21C.060 or other applicable state statutes.

 The requirement to combine the SEPA administrative appeal with the one open record hearing is particularly important for counties and cities that offer an open record predecision hearing and a SEPA administrative appeal. SEPA substantive determinations (mitigating conditions or denials) are made when the agency makes its decision on the underlying governmental action (e.g., permit approval). However, if a county or city has conducted an open record hearing prior to making its decision on the underlying action, it may not hold a second appeal hearing on SEPA substantive determinations. Therefore, if the county or city wishes to allow appeals of SEPA substantive determinations and hold open record predecision hearings, it is essential that testimony on substantive SEPA issues be allowed at the predecision hearing.

 Specific requirements for SEPA administrative and judicial appeals are contained in RCW 43.21C.075 and WAC 197-11-680. RCW 36.70B contains additional requirements for counties and cities.

 1. Background

 In 1995, the legislature authorized a new category of project action in SEPA called a "planned action". A GMA city or county can identify one or more types of project action that are designated in an ordinance. The types of project action must be limited to a specific geographic area that is less extensive than its jurisdictional boundaries or to certain types of development. The GMA county or city must conduct early environmental review in conjunction with an EIS prepared for a comprehensive plan or subarea plan prepared under GMA, or a fully contained community, master planned resort, master planned development, or a phased project. All of the planned action project’s significant environmental impacts must be adequately addressed in the EIS. This means that the GMA county or city must address all of the site-specific impacts of projects proposed as planned actions early in the planning process.

 As a result of this early environmental review, no threshold determination or EIS is required if a proposed project qualifies as a planned action. Instead, the city or county reviews the project and verifies that it is consistent with the planned action previously designated, that the environmental impacts have been addressed (which may include application of previously determined mitigation measures), and continues with the project permit review phase.

 Designating projects as a planned action shifts much of the environmental review component of project review from the time a permit application is made to an earlier phase in the planning process. This is similar to the current phased review process where environmental review can occur at the conceptual stage with limited (or focused) review at later stages. The difference is that the phased review process requires a threshold determination and the planned action process does not (provided the project meets all of the requirements for a planned action).

 The specific language discussing planned actions in the statute can be found in RCW 43.21C.031; the SEPA Rules provide the details on how this is implemented in WAC 197-11-164 through 197-11-172.

 2. What are the Advantages and Disadvantages of the Planned Action Approach?

 An advantage of using the planned action process is that permit processing time can be reduced. This is because the environmental impacts can be studied and appropriate mitigation determined prior to an applicant submitting a project application. This early review provides more certainty for project applicants regarding what will be required, and more certainty to the public regarding how environmental impacts will be addressed. Also, where public notice is required, instead of two public notice processes (one for SEPA and one for the permit process), there is only one notice process - for the underlying permit. There is no administrative appeal for a threshold determination at this point because an earlier EIS was prepared.

 A disadvantage of using the planned action process is that it can be costly for the GMA city or county. More up-front environmental analysis and review in conjunction with GMA planning processes is needed. As a result, cities and counties may need to pay for studies and processes that previously were paid for by private applicants.

 3. Steps in Using the Planned Action Approach

 The basic steps in using the planned action process are to prepare an EIS, designate the planned action by ordinance , and use the relevant environmental information in reviewing the permit application for a project proposed as a planned action.

 Step 1: Prepare the EIS. The significant impacts of projects designated as planned action must be identified and adequately addressed in an EIS. As specified in RCW 43.21C.031, the EIS upon which a jurisdiction is relying to address the impacts of a planned action must be prepared in conjunction with a GMA comprehensive plan or subarea plan, a master planned development or resort, a fully contained community, or a phased project.

The EIS for a planned action must provide a level of environmental analysis that would normally be conducted at the project level. Planned actions should only be designated when a county or city can reasonably analyze the significant site-specific impacts that will occur as a result of the types of projects designed, and can adequately address those impacts. A generalized analysis of environmental impacts will generally NOT provide enough information when it is time for the agency to issue a permit for a specific project.

 Step 2: Designate the planned action. The planned action must be designated, or identified, in an ordinance adopted by a GMA county or city. There are a number of procedural requirements for this. A GMA county/city considering the adoption of a planned action ordinance should review the requirements in RCW 43.21C.031 and WAC 197-11-164, 168, and 315. The following specific points should be considered:

•  An intensive level of public review for both the EIS and the proposed planned action ordinance is crucial. Since no threshold determination or EIS is required when a permit application is received, there may not be an opportunity for public review or appeal at the project review stage. In order to build support for an abbreviated permit process, public awareness is needed at these earlier phases.
•  The planned action ordinance should be as specific as possible, should indicate where in the EIS or associated planning document the projects’ environmental impacts have been addressed, and should include or reference mitigation measures which will be required for a project to qualify as a planned action. For example, the ordinance should indicate what mitigation has been identified in the EIS or what level of service has been accepted in the subarea plan for traffic impacts.

 If desired, the city or county may set a time limit in the ordinance during which the planned action designation is valid. If such a time limit is set, the city or county should consider how the time limit will affect how long permits are valid. For example, if a conditional land use permit is valid for five years and is issued just before the planned action designation expires, is the project still a valid planned action for the five-year life of the conditional land use permit?

 Although a GMA city or county must require the applicant to submit a SEPA environmental checklist with the permit application for a project proposed as a planned action, a revised format for the checklist may be developed by the city or county. A draft of the revised form must be sent to Ecology for a thirty-day review and approval prior to use of the new form. While not required at this phase, it would be helpful if the revised checklist were developed in conjunction with the ordinance.

 Step 3: Review the proposed planned action project. When a permit application and environmental checklist are submitted for a project which is being proposed as a planned action, the city or county must:

•  Verify that the project is one of those covered by the planned action ordinance;

• Verify that the probable significant adverse environmental impacts were adequately addressed in the EIS; and
• Verify that the project includes any conditions or mitigation measures outlined in the ordinance.

 If the project meets the above steps, neither a threshold determination nor an EIS is required. Public notice for planned action projects is tied to the underlying permit. If notice is otherwise required for any of the underlying permits, then that notice must state that the project has qualified as a planned action. Even if no notice is required, the jurisdiction is still encouraged to provide some form of public notice for planned action projects.

 If the project does not meet the requirements of the planned action ordinance, or the EIS did not address all probable significant adverse environmental impacts, the project is not a planned action. In this instance, the city or county must then make a threshold determination on the project and the project will be subject to normal environmental review as part of project review. The city or county may still use the environmental information contained in the EIS and supporting documents in making that threshold determination. If an EIS or SEIS is found to be necessary, it only needs to address those environmental impacts not adequately addressed in the previous EIS.

 The planned action process does not limit a city or county from using SEPA substantive authority or other authority (e.g. transportation mitigation ordinances) to place conditions on a project that mitigate nonsignificant impacts. It only guides how SEPA is used to analyze impacts for a project. The SEPA Rules governing planned actions specifically state that "Nothing in this section limits a GMA county/city from using this chapter or other applicable law to place conditions on the project in order to mitigate nonsignificant impacts through the normal local project review and permitting process."

 As with all projects, a project proposed as a planned action must still be analyzed for consistency with the applicable development regulations, or in the absence of applicable development regulations the adopted comprehensive plan. See the discussion on consistency in Part C for more information.