12. Adopting Agency SEPA Procedures and Policies

 

Each state and local agency must adopt its own rules and procedures for implementing SEPA. These "agency SEPA procedures" must be formally designated by rule, ordinance, or resolution. Before adopting their agency SEPA procedures, the agency must provide public notice and an opportunity for public comment [WAC 197-11-904(2)].

An agency's SEPA procedures identify the agency's responsible official, the method(s) for public notice, the procedures for administrative appeal, if any, and other information about the agency's review procedures. If an agency does not adopt agency SEPA procedures, the defaults in the SEPA Rules will apply. For example, if the agency has not identified procedures for public notice, the agency must publish notice for SEPA documents in a newspaper of general circulation and post the site (for site-specific proposals) [WAC 197-11-510(2)]. Another example is the administrative appeal process. To offer an administrative appeal of procedural and/or substantive issues, an agency must specify their administrative appeal process in their agency SEPA procedures.

Adoption of agency SEPA procedures are procedural and are categorically exempt from SEPA review [WAC 197-11-800(20)]

 

Agencies have the option of adopting sections of the SEPA Rules by reference. This allows an agency to list the section title and a brief summary without repeating the entire text of the section. If incorporation by reference is used, the agency must have at least three copies of the full text of the SEPA Rules on file for public review [RCW 43.21C.135].

To assist the counties and cities in developing their agency SEPA procedures, the Department of Ecology adopted a "model ordinance [Chapter 173-806 WAC]." This model provides a sample ordinance that may be used as a guide in developing a local SEPA ordinance. The latest version of the SEPA model ordinance is on Ecology's SEPA website at http://www.ecy.wa.gov under "Services" .

Each agency must also adopt policies that will be used as the basis for conditioning or denying an action using SEPA substantive authority. These "agency SEPA policies" must be formally designated by rule, ordinance, or resolution, and may be part of the agency's SEPA procedures. If an agency does not adopt SEPA policies, the agency cannot use SEPA substantive authority to condition or deny an action [RCW 43.21C.070 and WAC 197-11-902].

WAC 197-11-900 through 918 contains specific requirements for agency SEPA procedures and SEPA policies. WAC 197-11-906 specifically identifies provisions of the SEPA Rules that an agency cannot change or add to, and those that an agency cannot change but can add to (provided any additions are consistent with SEPA).

Examples of mandatory provisions that cannot be added to or changed include:

  • Definitions of "proposal," "action," "significant," "mitigation," "etc.;

  • Criteria for determining lead agency;

  • Information required from applicants; and

  • Style and size of an EIS [WAC 197-11-906(2)].

Examples of provisions that cannot be changed but can be added to include:

  • Part 4 (of the SEPA Rules), Environmental Impact Statement;

  • Part 5, Commenting; and

  • The list of agencies with environmental expertise [WAC 197-11-906(3)].

Examples of provisions that are optional include:

  • Establishment of an administrative appeal procedure [WAC 197-11-680(3)];

  • Elimination of some categorical exemptions in critical areas (counties and cities only) [WAC 197-11-908];

  • Establishing the categorical exemption level for minor construction within the minimum and maximum specified in the SEPA Rules (counties and cities only) [WAC 197-11-800(1)(c)]; and

  • Specifying procedures for enforcement of mitigation measures [WAC 197-11-350(7)].

Agencies must adopt their agency SEPA procedures and agency SEPA policies within 180 days after the effective date of the SEPA Rules or the effective date of any amendments to the Rules. If an agency is created after the effective date of the Rules, the agency has 180 days after its creation to adopt its SEPA procedures and policies [RCW 43.21C.120].

An agency may amend it agency SEPA procedures at any time. If the agency’s SEPA procedures change after the review of a proposal has started, the revised procedures will apply to any portions of SEPA that have not yet been started. For example, if a permit application and checklist are submitted before the new agency SEPA procedures become effective but the threshold determination is not made until after the effective date, the revisions would apply to the threshold determination but would not affect the checklist. The amended procedures cannot be used to invalidate or require modification of a threshold determination or EIS.

 

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