SEPA provides a process for citizens and others to challenge both procedural and substantive decision made under SEPA. Procedural appeals include the appeal of a threshold determination—both determinations of significance (DS) and nonsignificance (DNS)—and of the adequacy of a final environmental impact statement (EIS). Substantive appeals are challenges of an agency’s use (or failure to use) SEPA substantive authority to condition or deny a proposal.
Appeals may also be heard at two levels:
Administrative appeals, when offered, provide the first opportunity to appeal a SEPA decision and are normally used before the judicial appeal process. However, not all agencies provide an administrative appeal process, or they may provide for a substantive appeal or a procedural appeal but not both. In this case, the first appeal may be a judicial appeal.
For more information on the SEPA appeal process, refer to RCW 43.21C.060, 075, and 080; and WAC 197-11-680. Also refer to the Local Project Review Act (Chapter 36.70B RCW), since it contains provisions relating to SEPA administrative appeals. Anyone interested in appealing a SEPA procedural issue should contact the lead agency to determine what administrative appeal, if any, will be allowed. Questions on the availability of administrative appeals for substantive decisions should be directed to the agency that made the decision (i.e. to deny, condition, or not to condition a permit or other approval).
Each agency must decide whether or not to offer administrative appeals. If an agency offers an administrative appeal, the agency must specify its appeal procedure by ordinance, resolution, or rule [WAC 197-11-680(3)(a)(i)].
An agency may provide appeals of some, but not all, reviewable SEPA decisions. The only decisions that may be appealed at the agency level are a final threshold determination or EIS (including a final supplemental EIS), and SEPA substantive decisions. Other decisions, for example the applicability of categorical exemptions, may only be appealed to the courts.
A DS, DNS, or EIS are each subject to a single administrative appeal proceeding. Successive reviews within the same agency are not allowed. For example, a hearing examiner’s decision on the appeal of a DS cannot be further reviewed by the local legislative body. Further consideration is limited to review by a court as part of a judicial appeal.
Procedural and substantive SEPA appeals in most instances must be combined with a hearing or appeal on the underlying governmental action (such as the approval or denial of a permit). If a SEPA appeal is held prior to the agency making a decision on the underlying action, it must be heard at a proceeding where the person(s) deciding the appeal will also be considering what action to take on the underlying action.
SEPA appeals that do not have to be consolidated with a hearing or appeal on the underlying action are related to:
A local agency must also decide whether or not to allow an appeal of a non-elected official's decision to use SEPA substantive authority to condition or deny a proposal. If a local agency chooses not to allow an appeal to a local legislative body, the agency must clearly state that decision in its procedures [WAC 197-11-680(2)].
Under the Local Project Review Act (Chapter 36.70B RCW), each county and city is allowed to have no more than one "open record hearing" and one "closed record appeal" on the underlying governmental action (e.g., permit decisions) [RCW 36.70B.050]. An open record hearing is one at which testimony is received and a record is created. A closed record appeal is based on the record created at the open record hearing with no or limited new evidence or information.
An open record hearing can be either:
If the county or city allows a SEPA administrative appeal, the appeal must be heard at the open record hearing. Any SEPA appeal (procedural or substantive) that is not heard at the open record hearing of the underlying government action may not be later considered in a subsequent local hearing.
Agencies should be particularly aware of the consolidation requirements if they have chosen to hold open record predecisional hearings. The SEPA substantive determinations (project denials or attachment of mitigating conditions) are not made until the agency makes its decision on the underlying governmental action (e.g., permit approval). Since an agency cannot hold a second open record hearing on the SEPA substantive determinations (if an agency allows for substantive SEPA appeals), it is essential that testimony on substantive SEPA issues be allowed at any predecision hearing. This hearing is the only time for an administrative appeal of substantive issues and creates the record for any subsequent closed record appeal to a local legislative body [RCW 43.21C.060]. Administrative appeals offered by counties or cities must also comply with the time limits set in RCW 36.70B.110.
Judicial appeals are those appeals heard in court. A judicial appeal in most instances must be of the underlying governmental action (permit decision, adoption of a regulation, etc.) and the SEPA document (DNS or final EIS). If the agency allows a SEPA administrative appeal, it must be used prior to initiating judicial review [WAC 197-11-680(3)(c)].
The time period for filing a judicial appeal will depend on several factors:
If there is no time limit for appealing the underlying governmental action and the notice of action is not used, then SEPA does not provide a time limit for judicial appeals. However, the general statutes of limitation or the common law may still limit appeals.
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