2.4. The Lead Agency
The State Environmental Policy Act (SEPA) is intended to provide information to agencies, applicants, and the public to encourage the development of environmentally sound proposals. The environmental review process involves the identification and evaluation of probable environmental impacts, and the development of mitigation measures that will reduce adverse environmental impacts. This environmental information, along with other considerations, is used by agency decision-makers to decide whether to approve a proposal, approve it with conditions, or deny the proposal. SEPA applies to actions made at all levels of government within Washington State. (See section 1.1 Purpose and Intent for more information.)
Agency decisions are the hub of SEPA; if there is no agency action, SEPA is not required.
The SEPA Rules provide the basis for implementing SEPA, and establish uniform requirements for all agencies. By opening up the decision-making process and providing an avenue for consideration of environmental consequences, agencies and applicants are able to develop better proposals. Agencies may also deny proposals that are environmentally unsound.
SEPA environmental review is required for any state or local agency decision that meets the definition of an “action” and is not categorically exempt. Actions are divided into two categories, “project actions” and “nonproject actions”.
Project actions are agency decisions to license, fund, or undertake a specific project. For example, project actions include construction or alteration of:
Nonproject actions are agency decisions on policies, plans, and programs, including adoption or amendment of:
When deciding if a project requires SEPA review, remember that “agency action” includes not only a license, but also an agency decision to fund or undertake a proposal. Refer to WAC 197-11-704 for a complete definition of an agency action and WAC 197-11-760 for the definition of license. If an agency action is not required for a proposal, SEPA environmental review is not required.
The environmental review process involves a number of steps that are briefly described below. Each step is described in more detail in this handbook.
This table is intended as a general overview of the SEPA process, although many details are not included. Chief amongst these are the numerous points where the public, tribes, and/or other agencies have the opportunity to review and comment on proposals (as this will vary), and the consideration of those comments by the lead agency. Information on public comment periods and circulation requirements is depicted in Table 2.
Agencies may extend any comment period for their own proposals, WAC 197-11-050(7).
Environmental review of a proposal starts long before a lead agency makes a formal determination of whether a project is likely to have a significant environmental impact. Familiarizing the proponent with regulatory requirements and making an informal assessment of likely environmental impacts may lead to changes in the project’s location or design that will speed up the formal environmental review and permit approval process. Early environmental project review can reduce expenses and save time for both the proponent and the lead agency.
All agencies are encouraged to offer some form of pre-application process for the applicant. This may be an informal meeting, a site visit, or a formal process with specific requirements. Whatever the format, a pre-application process gives the agency and the applicant an early opportunity to discuss permit application requirements and potential issues. It also provides an opportunity for a "reality check" for the viability of the project and an opportunity to help the applicant understand the review process.
The applicant should provide information on the proposed project, but should not be required to prepare or present detailed plans. Based on the information available, the agency should preliminarily identify applicable regulations and permit needs (including other agency requirements), possible study requirements, potential mitigation, the timeline for review, and other appropriate information.
Issues for agencies to consider when developing a pre-application process include:
SEPA environmental review is required for all agency actions unless specifically exempted by the SEPA Rules (WAC 197-11-800 to 880) or statute. Refer to Section 2.3.3. Categorical Exemptions. Agency actions include providing funding or issuing permits for project proposals, and the adoption of plans, regulations, or ordinances for non-project proposals. (For the full definition of an action under SEPA, see WAC 197-11-704.)
The following steps are used to determine whether SEPA is required:
Some proposals may not require additional environmental review under SEPA if they qualify as a "planned action" under an ordinance adopted by a county or city planning under the Growth Management Act (GMA). (See section on Planned Actions.) In other cases, it may be possible to use existing environmental documents to meet SEPA requirements for a new proposal. (Refer to Using Existing Documents.)
Accurately defining the proposal is key to a successful SEPA process. It is necessary to define the entire proposal to:
Defining the total proposal involves the identification of all the related and interdependent pieces of the proposal. For example, the local agency (city or county) is likely to be lead for development of a dairy farm that consists solely of building construction. If the dairy also required creation of a large water reservoir, the Department of Ecology would become lead agency for the proposal per the lead agency criteria in WAC 197-11-938.
A large proposal involving actions in vastly different locations, such as material being mined at one site, then transported to and processed at another, is another example of defining the entire proposal. Appropriate environmental review would look at the impacts of all the related activities.
It is important to remember that actions are related if they are dependent on each other, so that one will not happen without the other. Related actions may also be spread over time, such as the construction, operation, and closure phases of a proposal.
Related actions may have a single proponent or several. A golf course might be proposed by a private party. However, the city installing a water reuse system needed to serve the site would be a related action. Though the golf course and the water reuse system have separate proponents, since neither would/could proceed without the other, they should be considered together as one proposal under SEPA.
The SEPA Rules allow a proposal to be phased so that SEPA compliance can be done for each phase. Phased review allows agencies and the public to focus on issues that are ready for decision and excludes from consideration issues already decided or not yet ready [WAC 197-11-060(5)(b)].
The sequence of phased review of a project must be from a broad scope to a narrow scope. For example, the review of a multi-phase planned unit development would consist of a general review of the entire proposal and detailed review of those phases ready for construction. Additional review would occur prior to each future phase when adequate information was available to evaluate the environmental impacts.
Phased review is not appropriate when it would merely divide a project to avoid consideration of cumulative impacts or alternatives. For example, if an industrial facility is proposed, it is not appropriate to limit the review to the impacts of the grade and fill permit without considering construction and operation of the industrial facility.
The "broad to narrow" restriction of phased environmental review does not apply to planning proposals done under the Growth Management Act. For example, the environmental review for the adoption of an interim critical area ordinance (narrow focus) may occur before the review and adoption of the comprehensive plan (broad focus). This is allowed under the 1995 amendments to the SEPA Rules in WAC 197-11-228.
Whenever phased review is used, the SEPA document must clearly state that the proposal is being phased. Future environmental documents should identify the previous documents and should focus on those issues not adequately addressed in the previous documents.
If the proposal consists of a series of actions that are individually exempt, but together may have a significant impact, then the proposal is not exempt.
In defining the proposal, it is necessary to determine what permits or approvals will be needed from state, local, and federal agencies. Some resources that can help are the Governor's Office for Regulatory Innovation and Assistance (ORIA), the Regulatory Handbook, and the ORIA website, accessible at http://www.oria.wa.gov.
ORIA can be reached at 1-800-917-0043, or emailed at firstname.lastname@example.org.
The ORIA's website includes an Information Center to help you determine which state and federal environmental permits may be needed based on information you provide about a proposal. The Regulatory Handbook is also available on the website or by contacting ORIA.
When deciding which agency permits or approvals are needed, it may be necessary to consult with other agencies to determine if they have permits or approvals to issue for a specific project. This will help to ensure that all agency actions are identified before determining whether a proposal is categorically exempt.
Some types of projects and some agency actions have been exempted from the requirements of SEPA by the Legislature. These “statutory exemptions” are contained in SEPA, Chapter 43.21C RCW. Examples of the statutory exemptions include Class I, II, and III forest practice applications, air operating permits, and some water right applications.
The table below summarizes all of the statutory exemptions contained in the SEPA statute on November 1, 2003. Please check the statute for any exemptions adopted after this date.
Statutory Exemptions As of November 1, 2003
Please remember that this is a summary and the entire exemption must be reviewed before determining if a proposal is exempt from SEPA review. (Link to RCW 43.21C)
In addition to the statutory exemptions, the Legislature directed Ecology to identify in the SEPA Rules minor activities that would not require SEPA review. These “rule exemptions” are types of projects or agency actions that are not subject to SEPA review because the size or type of the activity is unlikely to cause a significant adverse environmental impact. (Refer to Part Nine of the SEPA Rules.)
Examples of categorically exempt construction activities include construction of four dwelling units or less, commercial buildings with 4,000 square feet or less of gross floor area and no more than 20 parking spaces, and water and sewer lines eight inches or less in diameter. Examples of specific license exemptions include granting of land use variances based on special circumstances, water quality certifications, licenses for open burning, and some hydraulic project approvals.
The Legislature also directed Ecology to identify circumstances when the categorical exemptions would not apply. To meet this requirement, some categorical exemptions include “exceptions”. For example, the construction of a 4,000 square foot commercial building with 10 parking spaces is exempt from SEPA review except when the project is on lands covered by water or when the proposal requires a rezone, a license for air emissions, or a license to discharge to water.
Other restrictions are contained in WAC 197-11-305. A proposal that would normally be exempt from SEPA review under Part Nine of the SEPA Rules is not exempt if any of the following apply.
To determine if a proposal is exempt from SEPA, review the rule exemptions in Part Nine of the SEPA Rules and the statutory exemptions in SEPA. If the proposal meets the criteria for a categorical exemption in either the SEPA Rules or the SEPA statute, no further SEPA review or documentation is required. Remember to watch for “exceptions” and consider the restrictions in WAC 197-11-305.
Other agencies should consult with the city or county that has jurisdiction over the project site to determine which categorical exemptions do or do not apply to a proposal.
Most categorical exemptions use size criteria to determine if a proposal is exempt. The SEPA Rules allow cities and counties to raise the exemption limit for minor new construction to better accommodate the needs in their jurisdiction. The exemptions may be raised up to the maximum specified in the SEPA Rules [WAC 197-11-800(1)(c)]. For example, cities and counties may choose to exempt residential developments at any level between 4 and 20 dwelling units. The exemption for commercial buildings can range between 4,000 to 12,000 square feet. These "flexible thresholds" must be designated through ordinance or resolution by the city or county. If this has not been done, the minimum level stands. (Refer to section 220.127.116.11 Categorical Exemptions for Infill for information on creating exemptions for infill development.
If a proposal lies within two jurisdictions, the lower level threshold controls the total proposal—no matter which agency is lead on the proposal. For example, the major portion of a proposed 16-unit residential development lies within the city-limits of Bigcity, which has raised the residential threshold to 20 units. A small portion of the development (for instance, the recreational building) lies within the city-limits of Quiettown, which has not raised the residential threshold above the 4-unit minimum. Though Bigcity is lead agency for the proposal and all 16 units will be constructed within Bigcity jurisdiction, Quiettown’s lower 4-unit threshold must be applied to the entire proposal and the project would not be exempt.
The exemption level set by the county or city will also apply when an agency other than the county or city is lead agency. A state agency or special district may need to consult with the county or city to identify the adopted exemption level for a particular area.
It is also important to remember that the exemptions for "minor new construction—flexible thresholds" do not apply if any portion of the proposal involves work on lands covered by water, if a license is needed for a discharge to air or water, or if a rezone is required [WAC 197-11-800(1)(a) and (2)].
The exemptions defined under "Minor new construction — Flexible thresholds" do not apply when:
Cities and counties are required to designate critical areas under the Growth Management Act (GMA). Critical areas are wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. To ensure adequate environmental review of development within these areas, cities and counties may also designate in their SEPA procedures categorical exemptions that do not apply within each critical area. (Refer to WAC 197-11-908 for the list of exemptions that can be eliminated.)
If a project is not categorically exempt because it is located within a critical area, the SEPA environmental review is limited to:
An emergency exemption can be granted by a lead agency when 1) an action is needed to avoid an imminent threat to public health or safety, public or private property, or to prevent serious environmental degradation; and 2) there is not adequate time to complete SEPA procedures. Poor planning by the proponent should not constitute an emergency.
Cities and counties planning under the Growth Management Act (GMA) must designate urban growth areas, develop comprehensive plans, and adopt implementing regulations to accommodate population growth expected to occur over the next 20 years. As part of this planning effort, GMA cities and counties identify the density of residential development and intensity of mixed use, commercial, and other types of development that will be needed to accommodate the projected population growth.
In 2003, a new section was added to SEPA to encourage infill development at the densities and intensities designated by GMA cities and counties in their comprehensive plans. This new section allows GMA counties and cities to establish categorical exemptions for “…new residential or mixed-use development proposed to fill in an urban growth area designated according to RCW 36.70A.110, where current density and intensity of use in the area is lower than called for in the goals and policies of the applicable comprehensive plan.” (RCW 43.21C.229)
This legislation is intended to streamline the permit process for infill development in urban growth areas where a city or county is having difficulty meeting planned densities and intensities. Streamlining the permit process will encourage higher density and intensity of development where growth should occur.
Requirements for Adopting Infill Exemptions
Several criteria must be met for a GMA city or county to adopt a categorical exemption for infill:
Any infill categorical exemption adopted by a GMA city and county is subject to the same limitations as the categorical exemptions adopted by Ecology in the SEPA Rules. Specifically, WAC 197-11-305 states that a proposal is not exempt if:
In addition, many of the categorical exemptions adopted by Ecology do not apply when the proposal is on “lands covered by water”. The exemptions for minor new construction in WAC 197-11-800(1) also do not apply if a rezone is required or the project requires a license governing emissions to the air or discharges to water. When establishing a new exemption, the GMA city or county should consider whether one or more of these limitations should be included in the exemption.
GMA cities and counties considering adoption of a new categorical exemption should consider whether the exemption would apply to a project proposed within a critical area. It is recommend that the new exemption not apply in critical areas unless the city or county has updated its critical areas policies and regulations to include best available science under RCW 36.70A.172. This will ensure that the functions and values of critical areas are protected within the urban growth area.
Any categorical exemption adopted under this legislation should be adopted as part of the GMA city or county’s SEPA procedures. (Refer to WAC 197-11-904 and 906) A copy of any new categorical exemptions should be sent to the Department of Ecology, SEPA Unit, PO Box 47703, Olympia, WA 98504-7703.
Process for adopting infill categorical exemptions
The following steps are an example of the process that might be used by a GMA city or county to establish a categorical exemption for infill development.
Review of Proposals
When an application for residential or mixed use development is submitted, the GMA county/city must:
If the proposal meets the criteria in the categorical exemption and does not exceed the density/intensity levels in the comprehensive plan, the proposal is exempt from SEPA review. Agencies are not required to document that a proposal is categorically exempt from SEPA review. However, a note in the file may be useful for future reference.
Frequently Asked Questions About Infill Exemptions
For most proposals, one agency is designated as lead agency under SEPA. The lead agency is:
The responsible official represents the lead agency, and is responsible for ensuring adequate environmental analysis is done and the SEPA procedural requirements are met. The responsible official should be identified within the agency's SEPA procedures, and may be a specific person (such as the planning director or mayor), may vary within an agency depending on the proposal, or may be a group of people (such as an environmental review committee or the city council).
Federal agencies and tribes have no authority under SEPA and cannot be SEPA lead agency. If a federal agency or tribe proposes a project that needs a state or local permit, the federal agency would be considered a private applicant under SEPA and would be responsible for only those steps that are normally required of the applicant.
One of the first steps when an application for a new proposal is received is determining who will be the lead agency under SEPA. Usually the agency that receives the first application for a proposal is responsible for determining who is lead agency [WAC 197-11-924] and notifying them of the proposal. (See sample letter for Notifying Another Agency that They are Lead Agency.) If the applicant has filled out an environmental checklist, that is sent to the lead agency with the notification letter.
Lead agency status is determined according to WAC 197-11-922 through 948. The first step in determining the lead agency is defining the total proposal and identifying all necessary permits. The following criteria are listed in the order of priority:
If there is a dispute over who shall be the lead agency and/or the lead agency cannot be identified, an agency with jurisdiction or the applicant may ask the Department of Ecology for resolution (WAC 197-11-946).
Any non-federal agency within Washington State may be the lead agency as long as all agencies with jurisdiction agree [WAC 197-11-942]. The lead agency is not required to have jurisdiction on the proposal.
When the designated lead agency transfers all or part of the lead agency responsibilities to another agency, a "lead agency agreement" is made. Although we recommend that the agencies document the agreement in writing to avoid later confusion, this is not required.
Two or more agencies may become "co-lead" agencies if both agencies agree. One of the agencies is named "nominal lead" and is responsible for complying with the procedural requirements of SEPA [WAC 197-11-944]. All agencies sharing lead agency status are responsible for the completeness and accuracy of the environmental document(s). The written agreement between co-lead agencies, although not required, helps clarify responsibilities, and might typically contain: an outline of each agency’s duties, a statement as to which agency is nominal lead, aspects on how disagreements will be resolved, who will hear appeals, and under what circumstances the contract can be dissolved.
Federal agencies may share lead agency status with a state or local agency to produce a combined NEPA/SEPA document. This allows both agencies to have input into the document preparation, saving time and money, and ensuring that the information needed to evaluate the federal, as well as the state and local permits, is included. This also helps ensure necessary and important coordination among agencies and a more unified understanding of the proposal and mitigation. The co-lead agency agreement can be formalized in a written agreement outlining the responsibilities of both agencies for the environmental review process.
A city with a population under 5,000, or a county with less than 18,000 residents may transfer lead agency status for a private proposal to a state agency that has a license to issue for the project [WAC 197-11-940]. The city or county must forward the environmental checklist and other relevant information on the proposal to the state agency, along with the notification of transfer of lead agency status. The state agency may not refuse.
If there is more than one state agency with jurisdiction, the order of priority in WAC 197-11-936 is used to determine which state agency will be the new lead agency.
Lead agency agreements can transfer lead agency status, or create co-lead agencies.
Assumption of lead agency status occurs when the original lead agency issues a determination of nonsignificance (DNS) and another 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. After assuming lead agency status, the new lead agency is then required to issue a determination of significance and prepare an environmental impact statement (EIS) [WAC 197-11-948].
Any agency with jurisdiction may assume lead agency status during the 14-day comment period on a DNS. If, the lead agency uses the optional DNS process, assumption of lead agency status is made during the comment period on the notice of application. This is the only opportunity for an agency with jurisdiction to assume lead agency status during the optional DNS process [WAC 197-11-948].
Environmental review normally starts with the completion of an environmental checklist. The checklist provides information to the lead agency about the proposal and its probable environmental impacts. It is the lead agency’s responsibility to review the environmental checklist, permit application(s), and any additional information available on a proposal to determine any probable significant adverse impacts and identify potential mitigation. Consultations with other agencies, tribes, and the public early in the process can help identify both the potential impacts and possible mitigation.
Mitigation is the avoidance, minimization, rectification, compensation, reduction, or elimination of adverse impacts. Monitoring and taking appropriate corrective measures in also mitigation.
All other state and local agencies must issue a threshold determination (determination of significance or determination of non-significance) within 90 days of receiving a complete application.
The environmental checklist is a standard form used by all agencies to obtain information about a proposal. It includes questions about the proposal, its location, possible future activities, and questions about potential impacts of the proposal on each element of the environment (such as earth, water, land use, etc.). The environmental checklist is located in the SEPA Rules under WAC 197-11-960.
The lead agency may choose to fill out the checklist or may require the applicant to fill it out. An advantage to the applicant completing the checklist is that it causes them to examine their proposal from an environmental perspective and they may be motivated to make improvements. Guidance on completing the environmental checklist is available in the SEPA Guide for Project Applicants (Ecology Publication #02-06-018, revised August 2002). This guide provides information on each checklist question. For example, the Air section identifies types of activities that might generate air pollution emissions; the Animals section provides an Internet address for a list of threatened and endangered species. The guide is available on Ecology’s SEPA website.
Review and written revisions to the checklist by the lead agency is particularly important because the checklist:
The checklist was designed to be as generic as possible to ensure that it was applicable to every kind of proposal. The items in the checklist are not weighted. The mention of one or more adverse impacts does not necessarily mean they are significant [WAC 197-11-315(5)]. In most cases, if the questions are answered accurately and completely, the impacts of a proposal can be ascertained. If necessary, the lead agency may request additional information from the applicant after conducting the initial review of the checklist [WAC 197-11-100, 315, and 335].
The SEPA Rules allow an agency to amend part A, the background section of the checklist. In addition, a GMA county or city may further modify the checklist for use in evaluating "planned actions" once the Department of Ecology has approved the revised form [WAC 197-11-315(2)]. (Refer to the section on Planned Actions.)
The SEPA rules encourage all lead agencies to solicit comments from agencies with expertise to evaluate the environmental impacts of a proposal [WAC 197-11-335]. GMA cities and counties must now solicit agency and public comment through notices of application for many projects. Any agency may also choose to solicit comments through "consultations," or a request for review and response, prior to making a threshold determination.
A SEPA threshold determination is the formal decision as to whether or not the proposal is likely to cause a significant adverse environmental impact that requires review in an environmental impact statement.
Consultations may involve meeting with other agencies, or circulating the checklist and other environmental documents for comment prior to a threshold determination. This can assist the lead agency in determining permits needed, appropriate mitigation to require, any additional information and/or studies needed, and when an environmental impact statement is or is not needed for a proposal. WAC 197-11-920 gives guidance on agencies with expertise for various categories in the environmental checklist.
Consultations are intended to gather information from agencies with expertise.
There is no set form that a consultation must take. It is important that it contain sufficient information for agencies to provide valuable comments, including a clear description of the proposal. At a minimum, the environmental checklist should be included with a written consultation request. Information should also be included on when the comments must be returned for consideration by the lead agency, as well as an agency contact, address, and phone number.
Mitigation is the avoidance, minimization, rectification, compensation, reduction, or elimination of adverse impacts to built and natural elements of the environment. Mitigation may also involve monitoring and a contingency plan for correcting problems if they occur.
In determining mitigation, the lead agency should review the environmental checklist and other information available on the proposal, including consultations with other agencies. Mitigation required under existing local, state, and federal rules may be sufficient to eliminate any adverse impacts—or even to deny the proposal.
Additional mitigation can be applied to a proposal with the use of SEPA substantive authority, based on identified potential adverse impacts related to the proposal and the agency’s adopted SEPA procedures [Cities and counties should also be aware that they may be restricted from requiring mitigation for impacts that have been designated as acceptable or "adequately addressed" by their local legislative body See section 6.3.4]. (See section on Using SEPA in Decision Making.) Mitigation conditions must also be reasonable and capable of being accomplished.
It may also be possible to work cooperatively with the proponent to make changes to the proposal that will reduce and eliminate the significant adverse impacts. Voluntary mitigation may sometimes exceed the level that could be required of the applicant under regulatory authority, and produce a much improved and more desirable project.
Other agencies with jurisdiction or expertise, and the public may assist the lead agency in determining appropriate mitigation for a proposal. This can be done prior to the threshold determination (see discussion on Notices of Application and previous Section 18.104.22.168. Consultations), or may result from comments received on a threshold determination (DNS or DS/scoping notice), or draft EIS.
The SEPA "threshold determination" is the formal decision as to whether the proposal is likely to cause a significant adverse environmental impact for which mitigation cannot be easily identified. The SEPA Rules state that significant "means a reasonable likelihood of more than a moderate adverse impact on environmental quality [WAC 197-11-794(1)]". It is often non-quantifiable. It involves the physical setting, and both the magnitude and duration of the impact.
In evaluating a proposal, the lead agency reviews the environmental checklist and other information about the proposal, and should consider any comments received from the public or other agencies (through consultations, a notice of application, prethreshold meetings, etc.). Likely adverse environmental impacts are identified and potential mitigation is taken into account—particularly that already required under development and permit regulations. The responsible official must then decide whether there are any likely significant adverse environmental impacts that have not been adequately addressed.
The severity of the impact must be weighed as well as its likelihood of occurring. An impact may be significant if its magnitude would be severe, even if its likelihood is not great.
In determining if a proposal will have a significant impact, the responsible official may consider that a number of marginal impacts may together result in a significant impact. Even one significant impact is sufficient to require an environmental impact statement.
If significant impacts are likely, a determination of significance (DS) is issued and the environmental impact statement process is started. If there are no likely significant adverse environmental impacts, a determination of nonsignificance (DNS) is issued. The DS or DNS is referred to as a threshold determination. Additional guidance for making the threshold determination is included in WAC 197-11-330.
It is often possible to use existing documents to satisfy all or part of the requirements of SEPA. Existing environmental documents that analyze all or part of the environmental impacts of a proposal may be adopted, addended, or incorporated by reference. If there are any remaining environmental concerns, they can be addressed in supplemental analysis—such as a supplemental EIS or by an addendum issued with the new threshold determination.
The use of existing documents is particularly important for GMA cities and counties that have completed environmental analysis for their comprehensive plans and development regulations. This analysis should be used as the starting point for review of individual projects, allowing project review to focus on just those aspects that have not yet been addressed. GMA cities and counties also have available the new Planned Action process, where formal SEPA review is completed prior to proponents submitting permit applications for specific projects.
SEPA documents do not have expiration dates. After SEPA is completed, if a proposal is delayed so that new permits must be applied for, environmental review may be limited to verifying that there is no new information, regulatory changes, or changes to the proposal that would require additional review. (This is true even if the applicant has changed.) As long as there are no changes to be addressed, no additional paperwork is required and agencies may proceed with permit decisions [WAC 197-11-600].
Documents that may be adopted are limited to those that have been used in a previous SEPA or NEPA process. Any environmental information— report, study, etc.— may be incorporated by reference.
If the impacts associated with a new proposal have been adequately evaluated in a previously issued SEPA or NEPA document, the document may be adopted to satisfy the requirements of SEPA [WAC 197-11-630]. It is also possible to adopt several documents, such as the EIS done on the local comprehensive plan and a document prepared for either a similar proposal or a proposal located in a similar location. The lead agency may adopt all or part of the information and environmental analysis in the adopted document(s), but a new threshold determination is still required [WAC 197-11-340(1) and 360(2)].
A sample adoption form is found at WAC 197-11-965 in the SEPA Rules. Agencies may modify the form to better suit their needs but informational fields should not be omitted. (Examples of combined forms for a DNS with an adoption and a DS with adoption are found at the back of this handbook.) It is very important to provide a thorough description of the current proposal, as well as to clearly identify the document(s) being adopted.
An addendum or supplemental EIS that contains additional information or analysis may also be issued in conjunction with the adoption of existing documents. Adoptions typically take four forms:
When adopting a document, a copy of the adopted document must be available for review—although the lead agency is not required to recirculate copies with the adoption notice except to agencies with jurisdiction that have not already received them [WAC 197-11-630(2)(a)]. Agencies are encouraged to also distribute copies of adopted or incorporated documents to agencies with expertise or interest in the proposal, and to affected tribes along with the SEPA determination whenever the documents may assist in adequately evaluating the proposal.
It is a common misconception that agencies must "adopt" the environmental checklist prepared for the current proposal. This is neither necessary nor appropriate. Adoption of a checklist is only appropriate when the lead agency chooses to use a checklist that has been issued as part of a previous environmental review process, to support their current threshold determination.
The lead agency is responsible for completing the environmental review process for all agencies with jurisdiction [WAC 197-11-600(4)(a)]. Other agencies with jurisdiction are not required to adopt the environmental documents issued by the lead agency for the same proposal.
Incorporation by reference [WAC 197-11-625 and 754] is very similar in substance to adopting a document, in that all, or part, of the incorporated document becomes part of the agency environmental documentation for a proposal. Unlike the adoption process that is limited to environmental documents issued under either SEPA or NEPA, any information may be incorporated by reference. This may include any study or report that provides information relevant to a proposal.
To incorporate documents by reference, the document must be identified in the current checklist, threshold determination, or EIS, and the content briefly described. The adoption form is not used.
An addendum [WAC 197-11-600(4)(c) and 625] contains minor new information that was not included in the original SEPA document. An addendum may be issued for any SEPA document, and there is no set format. The addendum should clearly identify the original document, as well as the new information.
An addendum is appropriate when a proposal has been modified, but the changes should not result in any new significant adverse impact. They can also be used if additional information becomes available that does not change the analysis of likely significant impacts or alternatives in the original SEPA document.
The lead agency is encouraged to distribute the addendum to affected agencies and to interested persons. Distribution is required for an addendum to a draft EIS, and for an addendum to a final EIS if the addendum is issued prior to an agency action on the proposal [WAC 197-11-625]. Addendums do not require a comment period.
Cities and counties planning under GMA may also wish to consider using the Planned Action process. The impacts of the planned action are evaluated in an EIS (done for a comprehensive plan, subarea plan, or master plan resort, etc.) The planned action is then defined by an adopted agency ordinance or resolution. When a project is proposed as a planned action, environmental review consists of verifying that the proposal meets the requirements of the planned action ordinance or resolution, ensuring that the EIS evaluated all likely significant adverse impacts associated with the proposal, and applying mitigation identified in the EIS. When a proposal qualifies as a planned action, no new EIS or threshold determination is required, as the procedural aspects of SEPA have already been completed. If a proposal has any probable significant adverse impacts not addressed in the EIS, it is not a planned action.
A determination of non-significance [The standard DNS form is found in the SEPA Rules, WAC 197-11-970. The form can be modified by the lead agency, but no informational fields should be omitted.] (DNS) is issued when the responsible official has determined that the proposal is unlikely to have significant adverse environmental impacts, or that mitigation has been identified that will reduce impacts to a non-significant level. (For help making the threshold determination, refer to section on how to Assess Significance.) The DNS may or may not require a public comment period and circulation to other agencies [WAC 197-11-340].
If the lead agency is a GMA city or county, there are specific restrictions under the Local Project Review Act on when a DNS can be issued during the "integrated review process." To avoid needless delays sometimes caused by these restrictions, the "Optional DNS Process" was added to the SEPA Rules.
A primary goal of SEPA is to reduce or eliminate environmental impacts. If significant impacts are identified that would require the preparation of an EIS, those impacts can be reduced either by the applicant(s) making changes to the proposal or by requiring mitigation measures as a condition of approving the project. When changes to the proposal or mitigation measures are identified that will reduce likely significant adverse environmental impacts down to a nonsignificant level, a "mitigated DNS" is issued [WAC 197-11-350]. The mitigating measures are typically shown on the face of the DNS, or as an attachment. A 14-day comment period, distribution, and public notice are required for the mitigated DNS.
It can also be possible to require conditions through the use of SEPA substantive authority to reduce or eliminate adverse environmental impacts that may be less than "significant" [WAC 197-11-660(1)(b)]. (See section 6 for more information on Using SEPA in Decision Making.)
With the exception of projects for which the optional DNS process is used [see section 8.3, Optional DNS], if any of the following criteria applies to the proposal, a 14-day comment period is required for the DNS prior to agency action.
If a comment period is not required, the lead agency is not required by SEPA to provide public notice or circulate the DNS [Agencies using the Optional DNS Process are required to send the DNS to the Dept. of Ecology, agencies with jurisdiction, and any other persons who had requested it, though a comment period is not required]. The lead agency may simply add the DNS to the project file, so that it will be available for review if requested. Agencies may also choose to send the DNS and checklist for the proposal to the Department of Ecology’s SEPA Unit for inclusion in the SEPA Register. (See Additional Resources in Appendix C for additional information on the SEPA Register.)
If a comment period is required for a DNS, public notice and circulation requirements must be met. This ensures agencies with jurisdiction, affected tribes, and concerned citizens know about the proposal and have an opportunity to participate in the environmental analysis and review.
The DNS and the checklist must be sent to:
Public notice procedures should be stipulated within the lead agency’s adopted SEPA procedures. A list of reasonable methods to provide public notice is included in WAC 197-11-510(b). Those agencies that have no stipulated SEPA public notice procedures are required at a minimum to:
Additional public notice efforts are not required, but are encouraged for important or controversial proposals—regardless of environmental significance. Public hearings or meetings can provide additional avenues for public involvement, comment, and discussion. Many agencies have developed innovative means to "get the word out" to affected community members that may not be reached by more traditional methods. Examples include distributing bilingual flyers or advertising on non-English radio stations.
Figure 2: Sample Public Notice for a DNS
Whenever possible, the lead agency should combine the public notice for the DNS comment period with the public notice for any comment period and/or public hearing held on the permit or license. See Figure 3 for an example of a combined public notice.
The SEPA Rules require the responsible official to consider all timely comments made on a DNS. The lead agency may then choose to retain the DNS, issue a revised DNS, or—if significant adverse impacts have been identified—they may withdraw the DNS and issue a determination of significance (DS).
Retaining the DNS: If the lead agency decides to retain the DNS, agencies may take action on the proposal after the close of the comment period. A decision to retain a DNS requires no additional paperwork, although some agencies choose to circulate notice to agencies with jurisdiction and other interested parties. Other agencies place a memo in the file indicating the comments have been reviewed and no further review is needed. Sending a written response to commentors or arranging a meeting is at the discretion of the lead agency, but can be beneficial—both in establishing good public rapport and in developing an improved proposal.
Revising the DNS: A revised DNS is most often issued when there is a change in the mitigation conditions that will be applied to a proposal. It may also be used to document changes to a proposal that will not result in any likely significant adverse environmental impacts. A modified or revised DNS must be circulated to agencies with jurisdiction [WAC 197-11-340(2)(f)], but does not require an additional comment period. Public notice is generally not required. Since the format of a revised DNS is similar to other DNSs, the lead agencies should clearly indicate that it is a revised or modified DNS and identify the document being modified (project description, date of issue, etc.). Recirculation of the checklist to agencies that received the original document is not required, but is advisable when notable changes have been made or enough time has passed that the original may no longer be available.
Withdrawing the DNS: The lead agency must withdraw the DNS if:
It is also advisable to withdraw a DNS if the lead agency determines that it needs time to reconsider the significance of the proposal, reassess mitigation needs, or to do additional investigation. A new threshold determination and comment period will be required, but this will prevent the "locking in" of the original DNS by another agency issuing a non-exempt permit [WAC 197-11-340(3)]. Locking-in of the DNS can restrict the lead agency’s ability to impose additional mitigation measures for impacts not identified in the original DNS, or to require that an EIS be prepared.
The notice of withdrawal must be circulated to all agencies with jurisdiction. There is no set format for a withdrawal notice, but agencies should clearly identify the document being withdrawn, the project description and location, and the applicant’s name. It also may be helpful to include information on the reason for the withdrawal.
Copyright © Washington State Department of Ecology. See http://www.ecy.wa.gov/copyright.htm