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September 27, 2012
One of the lengthiest hurdles to development approval will be getting re-tooled as soon as January 2013 thanks to a ruling by the Washington Legislature.
With 90 seconds remaining before the midnight conclusion of the 2012 special legislative session, the Legislature adopted SB 6406, a multi-part bill requiring regulatory reforms for the State Environmental Policy Act. Among many changes, the new rules will increase exemptions that govern which projects are required to go through the time-consuming SEPA process.
History of SEPA
SEPA was adopted in 1971 in response to the 1969 National Environmental Policy Act. Today it serves as the foundation of our state’s environmental law. SEPA enables the government to address environmental issues related to a plan or development project through disclosure, avoidance and/or mitigation of potential environmental impacts.
SEPA can be the slowest process for obtaining project permits and approvals due to several factors:
1. For project proponents, specific documentation through the preparation of an environmental checklist is required, and is often supplemented through environmental studies.
2. A prescribed process and timeline for public, tribes and interested agencies to comment and appeal is required.
3. Public comments and appeals can extend the timeline and require project changes.
4. Other development permits cannot be pulled until SEPA review is complete.
While the law has been tweaked over the years, substantive changes have not occurred even in light of other significant planning legislation including the state Growth Management Act.
The special legislative session of 2012 was the culmination of two years of cooperation between state agencies, local government officials, special interest groups and the state Legislature to address regulatory reform. Conversations were originally initiated by the Governor’s Office of Regulatory Assistance, and then incubated with city and county planning directors.
The SEPA requirements became targeted as one area that had become a time-consuming exercise for both applicants and agency staff with, in many instances, little added value. In these lean times where staffs have been cut and project applicants have fewer resources, local agencies wanted to look at reforms that would increase efficiency while maintaining environmental protection and public notification.
Elements of SEPA reform
The 2012 legislation requires Ecology to update the environmental checklist and increase the list of project types that do not require SEPA compliance (i.e., categorical exemptions). At a minimum, the thresholds for exemptions are to increase for the construction of residential, office, school, commercial and recreational buildings; electric facilities; and landfilling or excavation activities.
In an effort to better focus on the current one-size-fits-all approach, the exemption levels are to vary depending on whether the project will be in a city, unincorporated area that is inside or outside an urban growth area, or a county that is or is not planning under GMA. In the meantime, before rule making is complete, the legislation states that local government “may apply the highest categorical exemption levels … regardless if the city or county has exercised its authority to raise the exemption levels.”
As required by the legislation, Ecology has convened an advisory committee consisting of a broad spectrum of interests. Each interest group has presented its recommendations for new exemption levels to Ecology, which will soon respond to the committee with its own recommendation.
Ecology is also required to look at ways to reduce redundancy of the environmental checklist and focus its questions on the unique aspects of a project. This includes providing guidance to project proponents to pre-answer questions when specific environmental protections are already addressed through other local and state regulations.
The legislation also mandates that changes not include new subjects, such as climate change and greenhouse gases. In approving this specific provision of the legislation, the governor required statements from key legislators clarifying that the intent was to eliminate existing duplication between state natural resource programs and not to amend any substantive SEPA requirements.
Ecology staff and a subcommittee are also looking at how public notice, particularly notice to the tribes, will occur for projects soon to be exempt from SEPA. While most local governments have other provisions for noticing outside of SEPA, it is possible that Ecology will turn to the next legislative session for assistance on notice requirements.
The rule-making process is highly compressed. Ecology will need to complete its formal rule for filing in mid-October. While public comment can be submitted through Ecology’s website (http://www.ecy.wa.gov/programs/sea/sepa/e-review.html), the formal public comment process will occur in November with final codification of the rules required by Dec. 31. The new rules will be effective 30 days thereafter.
It is likely that there will still be a host of overlapping provisions and conflicting interpretations on the application of the new rules. It will be up to each local government to determine how its own SEPA implementing regulations need to be modified to comply with the new rules.
In 2013, Ecology is to update other categorical exemptions, including non-project exemptions for minor code amendments, recommend changes that would further the integration of SEPA and GMA, and potentially further tweak the 2012 exemption thresholds.
Lisa Klein, AICP is a land-use planner and associate principal at AHBL with 22 years of experience in land-use consulting for private and public property development. She leads and manages multidisciplinary teams on complex development projects, from comprehensive feasibility analyses through site planning and entitlements.