July 12, 2001

SEPA document trends since GMA and regulatory reform

Fewer environmental impact statements are being written in Washington state these days. In 1995, the Washington Department of Ecology received 134 EISs compared to 7,976 determinations of nonsignificance. By the year 2000, the number of EISs received by the department had dropped to 57, in proportion to 7,129 DNSs.

While there are likely numerous reasons for fewer EISs being written, two reasons may be that smaller-scale projects are being proposed within urban areas under the Growth Management Act and some of the larger local jurisdictions planning under GMA have integrated their Washington State Environmental Policy Act process with updated development regulations, consistent with the Regulatory Reform Act.

Local jurisdictions planning under GMA (generally, those counties with a population of 50,000 or more and more than 10 percent population growth in the 10 years prior to May 1995, and the cities within these counties) were required to update their comprehensive land use plans and development regulations in the mid-1990s to implement growth management.

With varying degrees of detail, these municipalities defined urban growth areas and acceptable levels of development intensity within and outside these boundaries; prepared or updated critical area ordinances, capital facilities plans, transportation concurrency requirements and stormwater management regulations; established quantified acceptable thresholds of impact and levels of service within their urban growth areas; and defined formulas for assessing impact fees to mitigate the requirements of new development for public services, utilities and transportation system improvements.

As a result of regulatory reform, these counties and cities have also adopted procedures that combine environmental review with project review, and establish an integrated and consolidated development permit process.

These new regulations have helped to improve certainty for developers as well as local government officials, especially in larger cities and counties. Many mitigation requirements are now standardized in local ordinances. This consistency has resulted in less subjective use of the SEPA process, according to one city planning director and a developer interviewed for this article.

When project proposals are consistent with zoning and/or the intended land use identified in comprehensive plan documents that have undergone SEPA review, it is common for them to be addressed in a SEPA environmental checklist rather than an EIS. Many of the new GMA-related development standards within local jurisdictions (for example, ordinances addressing wetlands, geologic hazard areas, fish and wildlife habitat conservation, transportation concurrency, and stormwater management) require technical studies to be prepared to address the site-specific details of the affected environment, potential impacts of the proposed action, and mitigation measures.

A SEPA checklist is useful in bringing together and summarizing this information in lay persons’ terms for project-level environmental review by the public and decision makers. A SEPA checklist accompanied by the additional detail of technical reports is informally called an “expanded checklist.” The SEPA threshold determination made by a local jurisdiction using an expanded checklist is usually a mitigated determination of non-significance or MDNS, in which customized mitigation measures in addition to applicable development regulations are specified to eliminate or minimize project effects.

“Expanded checklists are more the norm than the exception today, largely as a result of the requirement for technical studies through other local ordinances” according to Ken Weiner, a lawyer with Preston Gates & Ellis. Weiner is one of the authors of the regulatory reform legislation and of Washington SEPA rule amendments to integrate GMA and SEPA.

EISs are still required for large or more complex projects with probable significant adverse impacts. However, fewer of the hundreds-of-acres developments in outlying areas that were common between the mid-1970s and the mid-1990s are being proposed since enactment of GMA. Today there is little vacant redevelopable land within urban areas and only rural land use densities are allowed outside urban growth areas.

The Regulatory Reform Act was intended to streamline the environmental review and permitting process. Passed by the state Legislature as an emergency measure in 1995, it specifies that a single project review process shall be conducted when a permit application is submitted; i.e., land use, environmental, public and governmental review are to occur concurrently. SEPA documents are to be written in a manner that is integrated with and does not duplicate other requirements. No EIS or further project mitigation is required if the applicant can demonstrate to the satisfaction of the lead agency that local development regulations, and state and federal laws and rules address and/or provide environmental analysis and mitigation measures for the project action.

Another mechanism for expediting project review and permitting is the “planned action” provision. A county or city planning under GMA may designate specified types of development within a defined geographic area. The prospective impacts and infrastructure needs of future development within the planned action area are addressed in a programmatic (i.e., non-project) EIS. A planned action EIS functions similar to a subarea plan, serving as the “umbrella” environmental review document for planned development within the defined area.

EISs prepared for planned actions more effectively review cumulative and regional effects than individual project EISs. They also take an overall view of natural amenities within the planning area, and formulate ways for preserving and enhancing these. A planned action EIS identifies mitigation measures in addition to applicable development regulations that shall be applied to projects that implement the planned action.

If project-level review by the county or city verifies 1) that a development proposal is consistent with the land use plan for the planned action area, 2) that the proposal will implement applicable conditions and mitigation measures, and 3) that probable significant adverse impacts of the project are adequately addressed in the planned action EIS, environmental review can be declared complete on the basis of an environmental checklist without even a SEPA Threshold Determination.

Most communities that have adopted planned action ordinances, or which are currently working on planned action EISs, have done so in the absence of specific development proposals. Rather, the planning department, working with residents and property owners in the community, develops the concept for the type of development they would like to have occur, and proceeds on the speculation that they can attract developers to implement the desired uses.

When the planning and environmental review has been completed for a planned action, a county or city offers essentially a pre-approved development area with expedited permit processing, the certainties of which are likely to be more attractive to developers than embarking on their own site-by-site environmental analysis and permitting process.

There is still a lot to be done to implement regulatory reforms adopted six years ago. There continue to be limits on staff time, experience and financial resources. However, improved land use plans, development regulations and administrative procedures, developed with a broader base of technical input, seem to be producing the desired results: making growth and development more environmentally compatible.

SEPA has been a significant factor in this evolution of planning and practice since its inception in 1973, by increasing awareness and spawning the innovative thought processes that formulated reasonable and effective mitigation measures, many of which have now become best management practices and development standards.

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Vicki Morris of Vicki Morris Consulting Services in Seattle is an independent consultant specializing in SEPA document preparation and permit assistance for private and public clients. Morris has served on the Seattle Planning Commission and as a member of the Law Seminars International faculty for the annual Growth Management Act Conference.

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