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SEPA HANDBOOK INTRODUCTION
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3. Environmental Impact Statement ProcessChapter Contents
An environmental impact statement (EIS) is prepared when the lead agency has determined a proposal is likely to result in significant adverse environmental impacts (see section on how to Assess Significance). The EIS process is a tool for identifying and analyzing probable adverse environmental impacts, reasonable alternatives, and possible mitigation. The EIS process:
See section on Using SEPA in Decision Making There are several steps in the EIS process:
There are two types of EISs: project and nonproject (often referred to as programmatic). A project EIS is prepared for a proposal that generally involves physical changes to one or more elements of the environment (see WAC 197-11-444 for a list of the elements of the environment). Examples of the types of proposals that could be analyzed in a project EIS include:
A nonproject EIS is prepared for planning decisions that provide the basis for later project review. Nonproject actions are the adoption of plans, policies, programs, or regulations that contain standards controlling the use of the environment or that will regulate a series of connected actions [WAC 197-11-704]. Examples include comprehensive plans, watershed management plans, shoreline master programs, and development regulations. (See Nonproject Review section.) 3.1 Encouraging Public Participation in the EISIncluding the public early in the EIS process is key to identifying public issues, establishing communication lines, and facilitating trust. Taking time up-front to plan how to involve the public and being responsive to the public’s needs as the process proceeds can result in a more complete and accurate document and a more satisfied public. Early involvement can also avoid later pitfalls and unnecessary delays.SEPA requires agencies to involve the public during:
Agencies are encouraged to think beyond regulatory requirements in determining how best to inspire public participation and create interagency cooperation. Agencies may enhance the required involvement opportunities or add to them, as the proposal warrants. For example, under "expanded scoping," [WAC 197-11-410] SEPA suggests several methods for enhancing public involvement beyond the basic requirements. The intent is to provide agencies with maximum flexibility to meet the purposes of scoping. Additionally, the lead agency may elect to provide supplementary opportunities for communicating with the public, starting before the determination of significance/scoping notice is issued and continuing throughout the EIS process. A public participation plan can be a valuable tool in the EIS process. The lead agency should begin planning for public participation prior to issuing the scoping notice, as this initiates the formal involvement of agencies, tribes , and the public. Agencies may also find that prethreshold meetings can be useful, even when it is certain that an EIS will be required. In developing the plan, the agency should consider each of the different stages of the process and then identify which methods would work best for the stage in question. The agency may also wish to consider extending the participation plan through the permitting stage as well. In developing the public participation plan, the lead agency should consider the value of:
Individual public involvement activities may take several weeks of prior preparation and should be carefully planned. This advance planning is particularly important for ensuring that adequate public notice is given. As the plan is implemented, the agency may wish to collect feedback from participants on an activity’s success. The information can be used to improve future planned events for the same proposal, and to assist in the planning of public participation on future proposals. 3.2 ScopingScoping is the first step in the EIS process. The purpose of scoping is to narrow the focus of the EIS to significant environmental issues, to eliminate insignificant impacts from detailed study, and to identify alternatives to be analyzed in the EIS. Scoping also provides notice to the public and other agencies that an EIS is being prepared, and initiates their involvement in the process. The scoping process not only alerts the lead agency, but also the applicant to areas of concern and controversy early in the process. As a result, it offers more opportunities for the applicant to consider and explore means to address the concerns. From an environmental perspective, this can result in changed proposals with fewer environmental impacts.
3.2.1 Issuing a Determination of Significance/Scoping Notice Once the responsible official determines an EIS is needed, a determination of significance/scoping notice (DS/Scoping) is issued. The form is located in the SEPA Rules at WAC 197-11-980. This form may be modified by the lead agency, but informational fields (i.e. project description, applicant, etc.) should not be omitted. The scoping notice should give as thorough a description of the proposal as possible and should include information on the areas to be addressed in the draft EIS. If the lead agency has identified possible alternatives, they should also be described in the scoping notice. The scoping process begins when the lead agency circulates the DS/scoping notice and gives public notice [WAC 197-11-408 and 410]. The date of issuance is the date the scoping notice is sent to the Department of Ecology, agencies with jurisdiction, and is made available to the public. Agencies and the public are encouraged to provide comments on the proposal and scope of the EIS, including commenting on alternatives, mitigation measures, and probable significant adverse impacts.
The lead agency may use various methods to involve the public in the scoping process:
3.2.2 Responding to Scoping Comments Although no formal response to the scoping comments is required, some agencies choose to prepare a scoping document that 1) summarizes the comments received during the scoping process; 2) identifies the elements of the environment, alternatives and mitigation measures to be analyzed; and 3) provides other relevant information. The scoping document can be a valuable tool to:
3.2.3 Determining the Scope of the EIS After reviewing the comments received during scoping, the lead agency must determine the scope of the EIS. The lead agency selects the alternatives and the elements of the built and natural environment [A list of the elements of the built and natural environment is found in WAC 197-11-444] that will be analyzed in the EIS. The alternatives selected must include the proposal, the no-action alternative, and other reasonable alternatives. The elements of the environment that are evaluated in the EIS should be narrowed to just those that may be significantly impacted. For example, an EIS for an apartment complex in a large city might focus only on transportation issues. Minimizing discussion of nonsignificant issues makes the document more readable for reviewers and useful to decision-makers. (Additional guidance on defining the no-action alternative and identifying reasonable alternatives can be found in Section 3.3.2.) 3.2.3.1 Revising the Scope of the EIS The scope of the EIS can be revised by the lead agency whenever changes to the proposal are made, or new information is learned. This does not mean the DS/Scoping notice must be reissued. In making the decision whether to repeat the formal scoping process, the lead agency should consider whether the intent and purpose of preparing the EIS would be compromised (if scoping is not redone) or improved (if scoping is redone). 3.2.4 Withdrawing a DS/Scoping Notice A determination of significance (DS) is withdrawn by the lead agency if:
There is no set format for the notice of withdrawal; it may take the form of a memo or letter, or it may be combined with a new threshold determination. The notice of withdrawal should be circulated to the Department of Ecology and any agencies with jurisdiction. When a DNS is issued for a proposal for which a DS has been withdrawn, a 14-day public comment period, public notice, and distribution of the DNS and checklist are required [WAC 197-11-340(2)(a)(iv)]. In addition to the Department of Ecology, agencies with jurisdiction, and affected tribes, a copy of the DNS must be sent to anyone who had commented on the DS/scoping notice [WAC 197-11-460(4)]. 3.3 Purpose and Content of an EISThe primary purpose of an EIS is to provide an impartial discussion of significant environmental impacts, and reasonable alternatives and mitigation measures that avoid or minimize adverse environmental impacts. This environmental information is used by agency officials—in conjunction with applicable regulations and other relevant information—to make decisions to approve, condition, or deny the proposal. (See Using SEPA in Decision Making.)An EIS is not meant to be a huge, unwieldy document. The text of a typical EIS is intended to be only 30 to 50 pages. It is not to exceed 75 pages unless the proposal is of unusual scope or complexity, in which case it may not exceed 150 pages [WAC 197-11-425(4)]. The EIS should provide information that is readable and useful for the agencies, the applicant, and interested citizens. A readable document:
A useful document:
Format requirements for an EIS are outlined in WAC 197-11-430, 440, 442, and 443. A cover letter or memo is required and the fact sheet must be the first section of every EIS. (A sample fact sheet can be found in Appendix D, on page 140.) Otherwise, the lead agency has the flexibility to use any format they think appropriate to provide a clear understanding of the proposal and the alternatives. The lead agency is responsible for the content of the EIS and for meeting the procedural requirements of the SEPA Rules. The lead agency, the applicant, or an outside consultant can prepare the EIS [WAC 197-11-420]. The lead agency must specify, within its own SEPA procedures, the circumstances and limitations under which the applicant will participate in the preparation of the EIS. Tip: A common misconception is that the requirement of an EIS for a project means that the proposal will probably be denied. This is not the intent or necessarily the outcome of an EIS. A determination to prepare an EIS means there are likely significant adverse environmental impacts that need to be carefully considered and understood, and alternative avenues for mitigating the issues that need to be investigated. Explaining what is being proposed is fundamental to the usefulness of the EIS. Therefore, the EIS should:
Agencies are encouraged to describe a proposal as an objective, particularly for agency actions. For example, a city could propose the construction of a series of settling ponds and a chlorination system at the wastewater treatment facility. Instead, the proposal could be described as meeting the wastewater treatment needs of future development for the next 15 years. This encourages the consideration of a wider range of alternatives, where different treatment processes, and even water reuse options are contemplated rather than limiting the consideration to size and location options. 3.3.2 Identifying Alternatives The EIS evaluates the proposal, the no-action alternative, and other "reasonable alternatives" [WAC 197-11-786, 197-11-440(5)] . A reasonable alternative is a feasible alternate course of action that meets the proposal's objective at a lower environmental cost. Reasonable alternatives may be limited to those that an agency with jurisdiction has authority to control either directly or indirectly through the requirement of mitigation. Alternatives are one of the basic building blocks of an EIS. They present options in a meaningful way for decision-makers. The EIS examines all areas of probable significant adverse environmental impact associated with the various alternatives including the no-action alternative and the proposal. Project alternatives might include design alternatives, location options on the site, different operational procedures, various methods of reclamation for ground disturbance, closure options, etc. For public projects, alternative project sites should also be evaluated. For private projects, consideration of off-site alternatives may be limited except under certain circumstances (see WAC 197-11-440(5)(d)). It is not necessary to evaluate every alternative iteration. Selecting alternatives that represent the range of options provides an effective method to evaluate and compare the merits of different choices. The final action chosen by decision-makers need not be identical to any single alternative in the EIS, but must be within the range of alternatives discussed. (Additional analysis in a supplemental EIS or in an addendum can be used to address any portions of the final proposal that lie outside the analysis in the EIS. See section on Use of Existing Documents.) As potential alternatives are identified, they should be measured against certain criteria:
It may not be evident at the beginning of the process whether an alternative meets all of these criteria. The lead agency should continue to analyze each alternative until information becomes available that indicates an alternative fails to meet the criteria. The alternative can then be eliminated from further consideration. Any decisions to eliminate an alternative and the reasons why should be documented in the EIS. Occasionally, a lead agency may decide that there are no reasonable alternatives to a proposal. In this case, the no-action alternative and the proposed action would be the only alternatives examined in the EIS. As part of the discussion of alternatives, the EIS must discuss the benefits and disadvantages of delaying implementation of the proposal [WAC 197-11-440(5)(c)(vii)]. The urgency of implementing the proposal can be compared to any benefits of delay. The foreclosure of other options should also be considered (i.e. conversion of timberland to residential development eliminates the possible use of the site for future timber production, conversion to farmland, etc.). SEPA requires the evaluation of the no-action alternative, which at times may be more environmentally costly than the proposal, or may not be considered "reasonable" by other criteria. Still, it provides a benchmark from which the other alternatives can be compared. The identification of a no-action alternative can sometimes be difficult. It is typically defined as what would be most likely to happen if the proposal did not occur. If a rezone is proposed, what is the most likely development on the site under existing zoning? If the proposal involves conversion of forestland to another use, this can be compared to the impacts of continued use of the site for timber production. There are other methods of defining the no-action alternative, such as "no new government action," or the "lock the gate and walk away" scenario where all current activities are also ceased. As the SEPA Rules do not define what the no-action alternative must look like, the lead agency has some discretion in its design. SEPA does not require the designation of a "preferred alternative" in an EIS. By identifying a preferred alternative, reviewers are made aware of which alternative the lead agency feels is best or appears most likely to be approved. This can be particularly helpful for agency proposals when what is actually being proposed may otherwise not be clear. Identifying a preferred alternative may also have disadvantages. The public may feel that the decision has already been made, which can cause frustration with the process. Also, comments received may be limited to arguments against the agency "decision," with supporters of the preferred alternative not bothering to respond at all. This may result in a lack of feedback both on the problems related to other "non-preferred" alternatives and on the benefits of the preferred alternative. If used, the preferred alternative can be identified at any time in the EIS process—scoping, draft EIS, or final EIS. When designated early in the process, it should be expected that changes are likely to occur to the preferred alternative prior to issuing the final EIS. Early designation of a preferred alternative in no way restricts the lead agency’s final decisions. 3.3.3 Affected Environment, Significant Impacts, and Mitigation Measures An EIS describes the existing environment that will be affected by the proposal, analyzes significant adverse environmental impacts of each alternative, and discusses reasonable mitigation measures. This discussion should be concise, not overly detailed, and should focus on those elements of the environment that will be significantly impacted. For example, it would be a rare necessity to describe the impacts of the Ice Age on the project site. However, if the type of soil will affect the type of stormwater control needed for the site, the EIS should identify the type of soil on the site (affected environment), describe proposed stormwater controls (proposal), and identify other appropriate stormwater controls (mitigation measures). When describing the environmental impacts of a proposal, the lead agency should consider direct, indirect, and cumulative impacts. For example:
Mitigation is defined as avoiding, minimizing, rectifying (repairing), reducing, eliminating, compensating, or monitoring environmental impacts (see WAC 197-11-768). Mitigation may be suggested by the applicant; mandated by local, state, and federal regulations; or required through the use of SEPA Substantive Authority. (See Using SEPA in Decision Making section.) The EIS should identify possible mitigation measures that will reduce or eliminate the adverse environmental impacts of a proposal. The discussion should include information on the intended environmental benefit of the proposed mitigation as it relates to the identified impact. If the technical feasibility or economic practicality is uncertain, the mitigation measure may still be discussed but discussion of the uncertainties should be included. The EIS should also clearly identify the mitigation measures as either mandatory or as potential so reviewers may better assess the impacts of the proposal. Mitigation measures must be reasonable and capable of being accomplished. The applicant may be required to implement mitigation measures only to the extent attributable to the identified adverse impacts of the proposal [WAC 197-11-660]. The summary section, which should be at the beginning of the EIS text, is the portion most likely to be read by decision-makers and members of the public. It should include a summation of the main issues in the EIS, including a concise description or discussion of:
The summary should also identify: (1) the major conclusions and significant areas of controversy, and (2) any remaining uncertainties and issues to be resolved. The discussion is useful because it presents the proposal as a whole, rather than separated by individual element. Matrices and charts, although not required, can be useful for summarizing alternatives, impacts and mitigation measures. See WAC 197-11-440(4) for additional detail. Other (non-environmental) impacts, such as a cost/benefit analysis, may be included in the EIS if the lead agency determines this information would be helpful in evaluating the proposal [WAC 197-11-440(8)]. 3.4 Draft EISA draft EIS documents the lead agency's analysis of a proposal, and provides an opportunity for agencies, affected tribes, and the public to review the document and provide suggestions for improving the adequacy of the environmental analysis. Comments on the draft EIS stimulate discussion and thoughts about how to change or condition the proposal to further protect the environment. Lead agency review of those comments offers the opportunity to improve the completeness, accuracy, and objectivity of the environmental analysis of a proposal. Improvements can then be made in the final EIS that will provide information to decision-makers. In some cases, the proponent may choose to modify the proposal based on comments made during the draft EIS comment period. In that instance, the modifications would also be described and evaluated in the final EIS. When the lead agency is satisfied with the content of the draft EIS, the EIS is issued and is circulated for review (see WAC 197-11-455 for specific requirements). The lead agency must also give public notice, and is encouraged to send a notice of availability or a copy of the draft EIS to anyone that has expressed an interest in the proposa1. Reviewers then have the opportunity to comment on the accuracy and completeness of the environmental analysis, the methodology used in the analysis, and the need for additional information and/or mitigation measures, so that improvements to the EIS can be made before it is finalized. A 30-day comment period is required on the draft EIS [Integrated GMA documents may require a longer comment period. See discussion addressing a GMA Action EIS]. The lead agency may extend the comment period up to an additional 15 days without consulting the applicant. The lead agency will sometimes include the additional days in the comment period when the EIS is issued, or they may grant an extension of the comment period on request. When an extension of the comment period is granted, the lead agency should whenever feasible provide notice of the extension to other reviewers. (The lead agency is not required to provide this notice, and there are no requirements regarding how notice is given.) When the lead agency is also the proponent of the proposal, the time periods may be extended to whatever the lead agency thinks is appropriate [WAC 197-11-050(7)] . The lead agency is required to hold a public hearing if 50 or more persons, within the agency’s jurisdiction or who would be adversely impacted by the proposal, make written request within 30 days of the issue date of the draft EIS. Lead agencies may also at their option provide this additional avenue and opportunity for agencies, tribes, and the public to comment on the document. The hearing must be held between 15 and 50 days after the draft EIS is issued [WAC 197-11-535(3)], and a minimum of 10-days notice must be made [WAC 197-11-502(6)(b)]. If held, this hearing does not constitute the one open-record hearing that is allowed under RCW 36.70B.020(3). Except when SEPA requires a document to be sent to an agency, lead agencies may charge for providing an EIS and related environmental documents [WAC 197-11-504]. Each agency should have policies regarding charges for requested documents. When requested by public interest organizations, agencies are encouraged to provide environmental documents free of charge. 3.5 Final EISThe final EIS provides decision-makers with environmental information about a proposal to help them decide whether to approve the proposal, approve it with conditions (mitigation), or deny the proposal. It is the lead agency’s record of the environmental analysis conducted for the proposal. The final EIS includes information and input from the applicant, lead agency, other agencies with jurisdiction or concern, tribes, and the public regarding the proposal. It is completed early enough so that there is still a choice between reasonable alternatives. 3.5.1 Responding to Comments on the Draft EIS The lead agency must consider comments received during the draft EIS comment period, and respond to them in the final EIS [WAC 197-11-560]. Lead agency responses to comments should be as specific and informative as possible. Possible responses are to:
All timely and substantive comments and the lead agency’s responses to them must be included in an appendix in the final EIS. If repetitive or voluminous, the comments may be summarized and the names of the commentors included. The lead agency may respond to each comment individually, respond to a group of comments together, cross-reference comments and the corresponding changes in the EIS, or any other reasonable method to provide an appropriate response. Tips: It may be appropriate to respond to a comment on the draft EIS with "comment noted" when the comment lacks substance (e.g. "I don’t want the proposal"). If the comment is generic or nonspecific (e.g., "There will be unacceptable air quality impacts"), the response might be: "Your comment was noted, but the comment was not specific enough to respond to. Please see Section XX of the final EIS for a discussion of air quality impacts and possible mitigation." The final EIS is intended to follow closely after the draft EIS, if at all possible. The SEPA Rules state that a final EIS shall be issued within 60 days after the end of the comment period for the draft EIS, except when:
If any of the exceptions apply, there is no time limit in which the final EIS must be issued. After considering comments on the draft EIS, the lead agency has several options for completing the EIS:
If any significant new issues have been raised, the lead agency may choose to issue a supplemental draft EIS with a second comment period prior to issuing the final EIS. This allows the public, tribes, and other agencies to review and comment on the new material and analyses before the document is finalized. (See the following Section 3.6. Supplementing an EIS for additional discussion.) The final EIS, when it is ultimately issued, may have any of the above formats. The final EIS is distributed to the Department of Ecology (two copies), all agencies with jurisdiction, any agency who commented on the draft EIS, and (though a fee may be charged) to any person requesting a copy. The final EIS or a notice that it is available must also be sent to anyone who had commented or received the draft EIS [WAC 197-11-460]. Agencies may take action on the proposal seven days after the final EIS has been issued. 3.6 Supplementing an EISA supplemental EIS [WAC 197-11-620] adds information and analysis to supplement the information in a previous EIS. It may address new alternatives, new areas of likely significant adverse impact, or add additional analysis to areas not adequately addressed in the original document. (When the additional information is minor and does not involve the analysis of new significant impacts, an addendum may be issued. Please see Section 2.7.3. for additional discussion of the use of addenda.)A supplemental EIS includes a draft (with comment period) and a final document, which essentially follows the same requirements as a draft EIS and final EIS. Scoping for a supplemental EIS [WAC 197-11-400 to 600] is optional. The supplemental EIS process is normally used after a draft and final EIS have been issued. However, a supplemental draft EIS may be issued before a final EIS if there are significant changes in the draft EIS. In this case, the draft EIS is circulated for review, then a supplemental draft EIS is circulated for review, and a final EIS is issued which responds to comments on both the draft and supplemental draft EISs. There are several situations when a supplemental EIS is appropriate:
To facilitate review and the comparison of options, it is helpful for the supplemental EIS to use the same organization and format as the original EIS. When a supplemental EIS is being prepared after the final EIS is issued, agencies with jurisdiction should consider waiting to issue permits until after the final supplemental EIS is issued. Although, the SEPA Rules do not address this, the additional analysis, changes to the proposal, or new mitigation may be relevant to other agencies’ decisions. The agency preparing the document should notify all agencies with jurisdiction that a supplemental EIS is being prepared.
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