A.1. General Questions
Q: What is SEPA?
A: SEPA is the abbreviation or acronym for the State Environmental Policy Act, Chapter 43.21C RCW. Enacted in 1971, it provides the framework for agencies to consider the environmental consequences of a proposal before taking action. It also gives agencies the ability to condition or deny a proposal due to identified likely significant adverse impacts. The Act is implemented through the SEPA Rules, Chapter 197-11 WAC.
Q: When is SEPA environmental review required?
A: Environmental review is required for any proposal which involves a government "action," as defined in the SEPA Rules (WAC 197-11-704), and is not categorically exempt (WAC 197-11-800 through 890). Project actions involve an agency decision on a specific project, such as a construction project or timber harvest. Nonproject actions involve decisions on policies, plans, or programs, such as the adoption of a comprehensive plan or development regulations, or a six-year road plan.
Q: Who is responsible for doing SEPA environmental review?
A: One agency is identified as the "lead agency" under the SEPA Rules WAC 197-11-924 to 938, and is responsible for conducting the environmental review for a proposal and documenting that review in the appropriate SEPA documents (DNS, DS/EIS, adoption, addendum). Two or more agencies may share lead agency status by agreement, but a single environmental analysis would be conducted and all SEPA documentation is issued jointly.
Q: When is phased review appropriate?
A: Phased review is appropriate when the sequence is from a broad review to narrower, more specific review. For example, review of site selection and general development issues, and subsequent review on specific design impacts when more information is available on the specific development. A planned unit development might be phased with the first phase evaluating the entire development in general terms and later phases evaluating specific construction.
Q: What are "elements of the environment"?
A: The elements of the environment, as used in SEPA, are listed in WAC 197-11-444, and include both the natural environment (earth, air, water, plants and animals, energy and natural resources) and the built environment (environmental health, land and shoreline use, transportation, public services and utilities).
Q: What is a "categorical exemption"?
A: A categorical exemption is a type of government action that is specifically designated as being exempt from SEPA compliance because it is unlikely to have a significant adverse environmental impact. The categorical exemptions are found in Part Nine of the SEPA Rules, and in the SEPA statute.
Q: What types of proposals are categorically exempt?
A: Certain proposals are exempt because they are of the size or type to be unlikely to cause a significant adverse environmental impact. Examples include minor new construction, such as, four dwelling units or less, commercial buildings with 4,000 square feet or less, and minor road and street improvements. Other exemptions include enforcement and inspection activities, issuing business licenses, storm/water/sewer lines eight inches or less, etc. Some proposals are exempt by statute, regardless of environmental impact.
Q: What are "flexible thresholds"?
A: The SEPA Rules allow the counties and cities to raise the exemption levels to the maximum specified in the SEPA Rules. These flexible threshold levels allow the counties and cities to determine what level of exemption is appropriate for their jurisdiction. For example, 20 dwelling units in a large city would not have the same impact as they would in a rural community. So the large city may set the exemption at the maximum level of 20 units, and the rural community may set it at the minimum level at 4 units.
Q: When do categorical exemptions not apply?
A: Some exemptions contain conditions under which they do not apply, such as projects undertaken wholly or partly on lands covered by water; projects requiring a license to discharge to the air or water; or projects requiring a rezone. A city or county may also eliminate some exemptions if the project is located within a designated critical area. WAC 197-11-305 outlines further instances where an exempt action must be reviewed under SEPA.
Q: If a county or city has raised the categorical exemption level for minor new construction activities, or eliminated some of the categorical exemptions in critical areas, do these decisions apply when a state agency or special district is lead agency (for example, the state Department of Transportation, a port district, or school district)?
A: Yes, before deciding if a proposal is categorically exempt, state agencies and special districts should consult with the city or county with jurisdiction to determine the exemption level for that area, or whether an exemption has been eliminated within a particular critical area.
Q: When are annexations exempt? Are annexations to a district exempt?
A: The 1994 Legislature specifically exempted annexations to cities or towns [RCW 43.21C.222], although the adoption of zoning pursuant to the annexation is not exempt. Annexations to districts are specifically identified as agency actions [WAC 197-11-704(2)(b)(iv)] and are not exempt.
Q: When would it be appropriate to use the emergency exemption?
A: Emergency exemptions apply to actions that must be undertaken
immediately or within a time too short to allow full compliance
with SEPA to:
Q: Can an emergency exemption be used for part of a project and SEPA review be required for other parts of the project?
A: If portions of the project meet the definition of emergency, those portions can be done immediately without SEPA environmental review. Other portions may require SEPA review. For example, if a marina collapses in a storm, cleanup may need to occur immediately to prevent a threat to the public or the environment. This would probably be considered an emergency exemption. However, the additional reconstruction/repair that can be done over a longer period of time would require SEPA review.
Q: What is the difference between lead agency, responsible official, and decision-maker?
A: The lead agency is the agency responsible for all procedural aspects of SEPA compliance. The responsible official represents the lead agency and is responsible for the documentation and the content of the environmental analysis. Decision-makers may be either staff members or elected officials who are responsible for taking an agency action, such as issuing a license, or adopting a plan or ordinance.
Q: Can a special district, such as a school district or port district, be SEPA lead agency?
A: The SEPA Rules define a local agency as "...any political subdivision, regional governmental unit, district, municipal or public corporation..." (WAC 197-11-762). If an agency is proposing a project or nonproject action, that agency is lead agency under SEPA. Therefore, a school district would be lead agency for school construction; a port would be lead agency for a port comprehensive plan; State Parks and Recreation would be lead agency for development or remodeling of a state park.
A special district or state agency may also be lead agency if a proposal requires a license from the district or state agency, but does not require a license from the county or city. For example, if the only permit required for an asphalt batch plant is a notice of construction from the local air authority, then the local air authority is SEPA lead agency.
Q: Which agency is SEPA lead agency when an agency is proposing a project that is located within the jurisdiction of another agency? For example, if the city is proposing a project on a site within the county, or State Parks and Recreation is proposing a project within an incorporated city.
A: The agency proposing the project is lead agency under the SEPA Rules, although lead agency status may be transferred by agency agreement.
Q: Which agency is lead agency for a private proposal?
A: When a license is required from a city or county, the city or county will usually be lead agency for the project. There are some exceptions for larger proposals where a state agency is designated as lead agency (see WAC 197-11-938 for criteria). If the city or county does not have a license to issue for the proposal, another agency with a permit to issue will be lead agency, such as a health district, local air authority, or a state agency.
Q: Can two or more agencies share lead agency status?
A: Yes, any number of agencies may agree to share lead agency status, with one agency designated as "nominal lead agency." The agencies should develop an agreement that defines the duties and responsibilities of each agency, how to deal with differing opinions, etc.
Q: Who resolves lead agency disputes?
A: The Department of Ecology may be petitioned by the proponent or any agency with jurisdiction to resolve disputes over who is lead agency for a proposal [WAC 197-11-946].
Q: What is the "threshold determination" process?
A: The threshold determination process is the process used to evaluate the environmental consequences of a proposal and determine whether the proposal is likely to have any "significant adverse environmental impact." This determination is made by the lead agency and is documented in either a determination of nonsignificance (DNS), or a determination of significance (DS) and subsequent preparation of an environmental impact statement (EIS).
Q: What is a "significant" adverse environmental impact?
A: WAC 197-11-794 defines "significant" as "a reasonable likelihood of more than a moderate adverse impact on environmental quality." What is considered significant will vary from one site to another, and from one jurisdiction to another, both because of the conditions surrounding the proposal at a particular location, and because of the judgement of the responsible official.
Q: Is an environmental impact statement required if the local development regulations or other local, state, or federal regulations mitigate all significant impacts?
A: No, if all significant impacts have been or will be mitigated to a nonsignificant level through the requirements in local, state, or federal regulations, or with the use of SEPA substantive authority, an EIS is not required.
Q: If mitigation is required by the local development regulations or other local, state, or federal regulations, do these mitigation measures need to be included in the DNS?
A: No, but the lead agency may choose to include information on mitigation required by local, state, or federal regulations with the DNS or in the checklist so that reviewers are aware of the conditions that will be placed on the final proposal.
Q: Can studies be required as a mitigating condition on a DNS?
A: Court cases have allowed the use of future studies as a mitigating condition. However, agencies are encouraged to obtain the necessary studies to identify probable impacts before a threshold determination is issued. This allows appropriate mitigation to be added to the permit before any construction activities occur.
Q: Can information in existing environmental documents be used for a new or amended proposal?
A: Yes, there are several ways that information in existing documents can be used: 1) adoption, 2) incorporation by reference, 3) addendum, or 4) supplemental EIS. Using existing information reduces duplication and delays caused by conducting duplicate studies and analysis.
A new threshold determination is required for a new proposal, except those qualifying as planned actions. Agencies may adopt all or part of existing documents to support a new threshold determination, or the information may be "incorporated by reference." A revised proposal generally does not require a new threshold determination, so adoption of the original document would not be required for the revised proposal.
An addendum may be used for either a new or revised proposal, if the analysis in the existing document (DNS or EIS) addresses all likely significant adverse impacts. The addendum would explain the differences between the original and the current proposal, and other minor new information. For a new proposal, the addendum would be issued with the adoption notice and new threshold determination. For the revised proposal, the addendum can be issued alone.
A supplemental environmental impact statement is prepared if the new or amended proposal has likely significant adverse impacts that have not been analyzed in an existing EIS. The supplemental EIS adds to the analysis in an existing EIS without needing to duplicate it. (See Section 2.7 of the handbook for additional information on using existing documents.)
Q: Can an agency prepare an addendum to a DNS? If so, what is the format? Are public notice and distribution required?
A: Yes, an addendum to a DNS can be prepared. There is no set format for an addendum to a DNS, and public notice and distribution are encouraged but are not required.
Q: If a project has been reviewed under SEPA but new information indicates supplemental review is needed for a portion of the project, can construction of the unaffected portion of the project proceed? For example, an EIS was done on site selection and building construction, but it is discovered that the utility line extensions will impact a wetland area. The lead agency determines a supplemental EIS is needed for the utility line extensions, but no further review of the building construction is needed.
A: The SEPA Rules state that no action that would foreclose options shall be taken until SEPA has been completed. In the example, the project should not be allowed to move forward until the supplemental EIS is complete, since denial of the utility extension would stop the project.
Q: What is a "DNS"?
A: A DNS or "determination of nonsignificance" documents the responsible officials decision that a proposal is not likely to have significant adverse environmental impacts.
Q: Does a DNS always have a public comment period?
A: No, there are five criteria to determine whether a comment period is required: (1) another agency with jurisdiction; (2) non-exempt demolition activities; (3) non-exempt grade and fill permits; (4) a mitigated DNS issued under WAC 197-11-350(2) or 350(3), or a DNS issued after a determination of significance is withdrawn [WAC 197-11-360(4)]; and (5) an action under the Growth Management Act, Chapter 36.70A RCW [WAC 197-11-340(2)(a)]. If a comment period is required, the lead agency must give public notice and circulate the DNS and checklist as specified in WAC 197-11-340(2). If a comment period is not required, no public notice or distribution is required.
Q: What is the difference between a DNS and mitigated DNS?
A: A mitigated DNS is a DNS that contains mitigation or conditions that reduce likely significant adverse environmental impact(s) to a nonsignificant level. A mitigated DNS requires a comment period (unless the optional DNS process has been used).
Q: What is the "optional DNS" process?
A: The optional DNS process allows a GMA city or county, when they are also the SEPA lead agency for a proposal, to use the comment period on the notice of application (NOA) to obtain comments on environmental issues. The NOA must state that the optional DNS process is being used and that this may be the public's only opportunity to comment. All mitigation conditions being considered must also be identified. After the end of the NOA comment period, the lead agency may issue the DNS without a second comment period.
Q: What is the issue date of a DNS?
A: The issue date is the day the DNS is sent to the Department of Ecology and is made publicly available. The 14-day comment period starts from the date of issuance.
Q: How does the responsible official handle comments on a DNS?
A: The responsible official must consider all timely comments received on a DNS and may retain (no documentation needed), modify (reissue with changes), or withdraw a DNS. Formal response to commentors is not required, but may be done at the discretion of the lead agency.
Q: Is the lead agency required to distribute comments received during the comment period on a DNS? If not, how will another agency with jurisdiction consider the comments prior to making a decision?
A: The lead agency is not required to distribute comments received on a DNS. Since the comments are part of the public record, agencies with jurisdiction (or anyone else) may request a copy.
Q: What is an EIS?
A: An environmental impact statement must be prepared when the lead agency determines a proposal is likely to have significant adverse environmental impacts. The EIS provides an impartial discussion of significant environmental impacts, reasonable alternatives, and mitigation measures that would avoid or minimize adverse impacts. The lead agency will issue a draft EIS is issued with a 30-day comment period to allow other agencies, tribes, and the public to comment on the environmental analysis and conclusions. The lead agency will use these comments to finalize the environmental analysis and issue a final EIS.
Q: When is an environmental impact statement required?
A: An EIS is required for any proposal that is likely to have a significant adverse environmental impact that mitigation has not been for that would reduce the impact to a nonsignificant level. The applicant and lead agency may work together to revise the proposal’s impacts or identify mitigation measures that would allow the lead agency to issue a determination of nonsignificance.
Q: What is "scoping"
A: If the lead agency issues a determination of significance, the first step in the process is to determine the "scope" of the EIS—those issues and alternatives that need to be evaluated. The scoping process allows the public and other agencies to comment on the scope of the EIS and assist the lead agency in identifying issues and concerns. The lead agency can either use a standard scoping notice with a written comment period, or they can use expanded scoping that might include public meetings, surveys, and other methods to involve the public in the scoping process.
Q: What documentation is needed after the close of the comment period on a scoping notice?
A: A determination of the scope of the EIS may be requested by the proponent after the close of the comment period. No other documentation is required by SEPA, although agencies may choose to issue a scoping document to agencies, commentors, or concerned citizens giving information on the comments received and the issues or alternatives that will be addressed in the EIS.
Q: Are there page limits for an EIS?
A: Yes, the text of an EIS shall not exceed 75 pages, except for proposals of unusual scope or complexity, which shall not exceed 150 pages [WAC 197-11-425(4)]. If appendices and background material exceed 25 pages and together the entire EIS would exceed 100 pages, they must be bound in a separate volume.
Q: Must the EIS include an alternative besides the proposed action and no-action alternative?
A: The EIS must evaluate reasonable alternatives that could feasibly attain the proposal’s objective, and are within a jurisdictional agency’s authority to control. The lead agency may determine that there are no reasonable alternatives, and may then evaluate only the proposed action and the no-action alternative.
Q: Does the final EIS include all of the information in the draft EIS?
A: Yes, in most cases. The draft EIS is exactly that—a draft. The final EIS may be significantly different from the draft because the lead agency revises the EIS based on comments and new information learned. The final EIS also includes all comments received on the draft EIS, and the lead agency’s responses. If no significant comments are received, the lead agency may choose to simply issue a new fact sheet (which may also include an addendum) to be attached to the draft document. (See section 3.5 Final EIS, or WAC 197-11-560 for specific requirements.)
Q: Does the EIS have to include the addresses of commentors and the agencies and citizens on the distribution list?
A: The SEPA Rules require the inclusion of a "distribution list" and that the commentors' names shall be included, but does not mention the need for addresses.
Q: Does Ecology maintain a list of consultants that prepare environmental impact statements?
Q: What is SEPA substantive authority?
A: It is the regulatory authority granted to all state and local agencies under SEPA to condition or deny a proposal to mitigate environmental impacts identified in a SEPA document. To use SEPA substantive authority, the agency must have adopted agency SEPA policies.
Q: Are the mitigation measures identified in the SEPA document (DNS or EIS) mandatory?
A: Not necessarily. Mitigation conditions required with use of SEPA substantive authority must be included as conditions on a permit, license, or approval, before becoming mandatory or enforceable. Mandatory mitigation required under other local, state, or federal laws may also be included on the DNS by the lead agency for the information of reviewers.
Q: Are there any opportunities to appeal SEPA documents or the use of SEPA substantive authority?
A: The lead agency has the option of allowing an administrative appeal and may allow an appeal of either procedural issues or substantive decisions, or both. If the administrative appeal process has been exhausted or is not available, a judicial appeal that is heard by the court can be pursued. (See section 11. Appeals.)
Q: What is an "underlying governmental action"?
A: The underlying governmental action [WAC 197-11-704 and 799] is the action that must be taken by an agency to authorize a proposal. Actions include the issuing of a permit or license, the approval of funding, the adoption of a plan, ordinance, or rule, or other actions defined in WAC 197-11-704.
Q: Is an agency required to have a SEPA administrative appeal process?
A: No, each agency must decide whether or not to offer an administrative appeal. If an administrative appeal process is offered, the agency must identify the type of appeal that will be allowed (procedural issues, substantive decisions, or both; including appeal of a non-elected official's substantive decision). (See RCW 43.2lC.060, .075 and WAC 197-11-680)
Q: Can an applicant appeal an agency's decision to require mitigation measures?
A: Yes, if the agency does not offer an administrative appeal on the substantive use of SEPA, the applicant may file a judicial appeal of the mitigation.
Q: What is the appeal process when a state agency is SEPA lead agency and the county or city has a permit to issue?
A: Procedural issues (process and content of the environmental review) would be appealable to the state agency if the agency offers a procedural administrative appeal. Appeals of the local agency's use or non-use of SEPA substantive authority to condition or deny the proposal may be filed with the local agency if they offer an appeal of substantive issues. (When administrative appeals are exhausted or not available, judicial appeals may be filed.)
Q: What is a "notice of action"?
A: A notice of action is the document used to limit the time a SEPA appeal can be filed when the underlying government action has no set appeal limitations. The form is located in WAC 197-11-990. Procedures for using a notice of action are found in RCW 43.21C.080.
Q: What is the "action" referred to in part 2 of the notice of action (WAC 197-11-990)?
A: It is the underlying government action for the proposal, such as the adoption of a comprehensive plan, ordinance, or rezone; or the issuing of a permit or approval. It is not the issuance of a SEPA document.
Q: If a notice of action (RCW 43.21C.080) is filed for the first permit decision, can future permit decisions be challenged? If so, are there any limits on what can be challenged (for example, compliance with SEPA procedural steps, or use of SEPA substantive authority, or both)?
A: Future procedural appeals will not be allowed, but future appeals of the use of SEPA substantive authority in respect to future permit decisions may be permitted.
Q: What is a nonproject action?
A: A nonproject action is defined as a decision on policies, plans, or programs. This includes adoption or amendment of a comprehensive plan, regulations that contain standards controlling use or modification of the environment, highway plans, etc. (see WAC 197-11-704).
Q: How does SEPA review fit into the planning process?
A: Environmental review of a proposal should be incorporated into the entire planning process. Documentation of this review should be issued with the draft planning document; either as a combined document or as separate documents issued together.
Q: When should a county or city begin environmental review in the GMA planning process?
A: Adopting interim regulations, county-wide planning policies, comprehensive plans, and development regulations are all government actions that require environmental review under SEPA. The lead agency must determine what type of environmental review is appropriate at each stage of GMA planning. An EIS should be prepared when a planning action will have probable significant adverse environmental impacts.
Q: Is environmental review necessary for a jurisdiction that is updating an existing comprehensive plan to satisfy GMA?
A: Yes, updating an existing comprehensive plan is an action that requires environmental review under SEPA. The type of environmental review required will vary depending on whether an EIS was prepared for the existing plan, how recently the EIS was prepared, and how extensive the revisions will be. As a general rule, the environmental review should address any probable significant adverse impacts that will result from the revised plan that were not analyzed when the existing plan was adopted.
Q: Is environmental review required for a public participation plan developed under GMA?
A: No, the adoption of resolutions or ordinances relating solely to governmental procedures are exempt from SEPA review. A public participation plan, in most cases, will be solely procedural and should be exempt from environmental review.
Q: How and when are cumulative impacts evaluated?
A: SEPA requires agencies to address cumulative impacts. This can be difficult if each project is evaluated individually in isolation from other related proposals. With comprehensive planning under GMA, cities and counties are able to look at the "big picture," evaluate cumulative impacts of development, and determine appropriate mitigation measures to apply to individual, future proposals. Agencies also have a responsibility to look at cumulative impacts within project EISs. The EIS should look at how the impacts of the proposal will contribute towards the total impact of development in the region over time. (Proponents are only responsible for mitigation of the portion attributable to their own proposal, though voluntary mitigation beyond that level is allowed [WAC 197-11-660(1)(d)].)
Q: How much review is required at the planning stage for project impacts?
A: Lead agencies are responsible for considering the probable significant adverse impacts of planning actions such as the adoption of comprehensive plans and development regulations. If the plans or regulations proposed would allow activities to occur that are likely to have significant adverse impacts, those impacts must be addressed in the environmental review of the planning action. The more detailed the review at the planning phase, the less review that is needed at the project stage.
Q: Is integration of SEPA and GMA just combining documents?
A: No, the intent of SEPA/GMA integration is to ensure that environmental considerations inform decision-making at every GMA step from early policy development through project permit review. Combining processes and procedures like SEPA scoping and GMA visioning, documenting existing conditions under SEPA and conducting inventories of land use, housing, transportation and other capital facilities under GMA, or coordinating SEPA and GMA requirements for notice and comment periods, facilitate this substantive integration. Combining documents is optional.
Q: How are GMA and SEPA documents combined?
A: Comprehensive or subarea plans and EISs are the documents
most often combined. A community’s unique planning circumstances
and timing requirements will influence how this is accomplished.
There are a number of options to integrating the GMA and SEPA
documents, including preparing the draft plan prior to preparing
the draft EIS, and issuing them together with a combined comment
Q: Must a nonproject EIS on a GMA plan or subarea plan follow a specific format?
A: The only requirements are that the document begin with a fact sheet and contain an environmental summary [WAC 197-11-235(4) and (5)]. An agency may choose whatever format they feel would best present the alternatives and environmental analysis [WAC 197-11-430(2) and 442]. Separate sections on affected environment, significant impacts, and mitigation measures are not required in integrated documents as long as this information is summarized and supported in the record [WAC 197-11-235(2)(b)]. The rules for integrated documents stress that format should be dictated by attention to the quality, scope, and level of detail of the information and analysis [WAC 197-11-235(1)].
Q: What is an "alternative" when preparing an EIS for a comprehensive plan? How is the no action alternative defined?
A: A range of alternatives should be evaluated, exploring the different land use options, including different urban growth area boundaries, characteristics and densities of development, etc. The no-action alternative for a comprehensive plan is generally defined as no change in existing regulation—zoning, development regulations, critical area ordinances, etc. (or the lack thereof) would be unchanged. The environmental impacts of predicted growth under this "no-action" scenario is then compared to that of the other alternatives.
Q: What is the timing of a final EIS when integrated with a comprehensive plan?
A: When the integrated document contains the final EIS and the plan, the issuance of the final EIS and the adoption of the GMA document may occur together (no 7- day waiting period) [WAC 197-11-230(5)].
Q: Is additional environmental review required when the final action is different from the alternatives analyzed in an EIS?
A: If the final approved proposal falls within the range of alternatives analyzed in the EIS and all likely significant adverse impacts have been evaluated, additional review would not be required. For example, one of the EIS alternatives evaluates the impacts of four urban centers and another alternative evaluates the impacts of six urban centers. If the agency selects five urban centers as the preferred alternative, it is possible that the impacts would have been covered by the range of alternatives in the EIS.
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