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Washington State Department of Ecology

Ecology home > SEA Program > SEPA Home > Summary of 2012 Legislation

Summary of 2012 SEPA Legislation

There has been significant discussion regarding SEPA legislation for the past couple of years. This year’s session resulted in a push for Ecology to update the statewide SEPA rules (WAC 197-11) to better reflect local land-use planning and development regulations. There were two bills passed by the end of the 2012 special session. The first is SB 6406, which mandates SEPA rule update and changes several provisions of the statute. The second was SB 6082 which addresses the need for SEPA to better address impacts to agricultural resource lands.

SEPA Provisions in SB 6406 2012 Session Law

Effective date: July 10, 2012

Excerpt of SEPA provisions in Part 3 of SB 6406 (PDF)

Rulemaking: New rulemaking requirements for the Department of Ecology are summarized on the SEPA Rulemaking webpage and specified in Section 301 of the bill. Note that this section expires on July 31, 2014.
Flexible exemption thresholds for minor new construction projects: Section 301(2)(d) includes the following language, which is applicable only in the interim period before rule making is complete:

“Until the completion of the rule making required under this section, a city or county may apply the highest categorical exemption levels authorized under WAC 197-11-800 to any action, regardless if the city or county with jurisdiction has exercised its authority to raise the exemption levels above the established minimums, unless the city or county with jurisdiction passes an ordinance or resolution that lowers the exemption levels to a level below the allowed maximum but not less than the default minimum levels detailed in WAC 197-11-800.”
Planned actions: Section 303 moves and revises the language in 43.21c.031 related to planned actions. The types of development that may qualify as a planned action are expanded to include essential public facilities that are associated with a residential, office, school, commercial, recreational, service, or industrial development. Public notice and hearing requirements are delineated for proposed planned action ordinances.
Infill exemption: Section 304 expands the application of the infill exemption in RCW 43.21c.229. Currently, the types of development eligible for the exemption are residential and mixed use (residential along with other uses, such as commercial). Section 304(1)(a) states that the types of development eligible for the exemption (via local adoption of a SEPA infill exemption ordinance or resolution) are residential, mixed use, and commercial up to 65,000 sq. ft –but not including retail businesses. The EIS requirement is also not limited to the entire comprehensive plan but can include only the area under consideration for the exemption. An additional exemption criterion is also added that requires a case-by-case determination that “specific probable adverse environmental impacts” of the specific projects are addressed by current regulations and plans.
Non-project actions exempt from SEPA review: Section 307 identifies that adoption of the following local ordinances are exempt from SEPA review:
- Development regulations required to ensure consistency with an adopted comprehensive plan or shoreline master program. The program or plan must have included an analysis of development regulation impacts in its previous SEPA review.
- Amendments to development regulations that, upon implementation of a project action, will provide increased environmental protection, and includes one of the following:
  - Increased protections for critical areas, such as enhanced buffers or setbacks;
  - Increased vegetation retention or decreased impervious surface areas in shoreline jurisdiction; and
  - Increased vegetation retention or decreased impervious surface areas in critical areas;
- Amendments to building, energy and electrical codes of local government adopted to ensure consistency with minimum standards contained in state law.
Environmental Checklist flexibility: Section 308 provides new flexibility for pre-answering questions on the SEPA checklist. The lead agency “may identify within the checklist provided to applicants instances where questions on the checklist are adequately covered by a locally adopted ordinance, development regulation, land use plan, or other legal authority.” This is intended to reduce redundancy and improve clarity regarding existing development regulations (ex. reference adopted school impact fees as addressing this Checklist issue.) The bill has several specific conditions regarding implementation of this new flexibility:
- Lead agency must still “consider whether the action has an impact on the particular element or elements of the environment in question” and “explain how the proposed project satisfies the underlying local legal authority.”
- An applicant may still provide answers to any questions on the checklist.
- Lead agency cannot “ignore or delete a question on the checklist.”
- This provision does not alter the standard for when an environmental impact statement is required, change appeal provisions or modify rules on determining lead agency.
The Growth Management Planning and Environmental Review Fund (PERF) is amended in Sections 309 and 310 to allow the PERF to make loans and grants to local governments for programmatic SEPA review. The amendment includes additional evaluation criteria when awarding grants and loans from the fund. Specifically “environmental review that addresses the impacts of increased density or intensity of comprehensive plans, subarea plans, or receiving areas designated by a city or town under the regional transfer of development rights program” can be given preference when included in a proposal for funding.
Miscellaneous clarifications: Sections 311 and 312 are minor language changes related to the rule development section of the SEPA statute -RCW 43.21C.110.

Agricultural Resource Lands and the SEPA Checklist

A new section is added to the SEPA statute to emphasize the importance of protecting and preserving agricultural lands. Ecology is directed to consider an administrative rule change to the checklist form in order to “ensure consideration of potential impacts to agricultural lands of long-term commercial significance . . . .the review and update shall ensure that the checklist is adequate to allow for consideration of impacts on adjacent agricultural properties, drainage patterns, agricultural soils, and normal agricultural operations.

Ecology plans to incorporate this subject of rule review and amendment into the 2013 rulemaking process specified in SB 6406 (see Ecology’s SEPA Rulemaking page).