Changes to SEPA Effective on 7/10

This year, the legislature passed amendments to the State Environmental Policy Act (SEPA) that directly affect local governments.  In Part Three of 2ESSB 6406 (Laws of 2012, 1st Spec. Sess., ch. 1), the legislature enacted a number of changes to SEPA that are designed to make this environmental law work better for cities, counties, and project applicants by coordinating it more effectively with current land-use planning and development regulations and by streamlining the regulatory process.  The amendments went into effect on July 10.

The amendments deal with increasing categorical exemptions from SEPA review for certain minor construction projects, expanding the types of development that may qualify as a planned action, establishing exemptions for certain minor nonproject actions,  expanding the application of the infill exemption in RCW 43.21C.229, and authorizing flexibility in the SEPA checklist.  The amendments concerning increasing categorical exemptions for certain minor construction projects and authorizing flexibility in the SEPA checklist require rulemaking by DOE for full implementation.  Both the Association of Washington Cities (AWC) and the Department of Ecology (DOE) have posted good summaries of the SEPA amendments enacted by this legislation, so I won’t bother to summarize them here.

However, I want to point out some language in Section 301 of this legislation concerning categorical exemptions for certain minor construction projects that may cause confusion.  That section states that, by December 31, 2012, DOE must amend its rules to increase these categorical exemptions, but that, in the meantime:

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.

(Emphasis added.)  Although the words “may apply” suggest that a city or county has the discretion to apply the highest categorical exemption level – say, residential structures of 20 dwelling units, instead of four – or not, the intent of this language is, according to AWC staff, that cities and counties should apply the highest levels unless their legislative bodies have specifically adopted lower levels after the effective date of this legislation (July 10).  Applying this interpretation, which I would advise doing even if the language does not fully support it, would avoid possible arbitrary application of categorical exemptions on a project-by-project basis.

I also want to note that AWC will be coordinating an advisory group to provide information and support to the official city designees on the DOE advisory committee regarding the implementing regulations DOE is required to adopt under Section 301.  This will be an opportunity to help ensure that the official designees understand and can articulate the impact of proposed changes on your city.  Contact Carl Schroeder at AWC if you would like to participate.

About Bob Meinig

Bob has written extensively on the state Open Public Meetings Act and on municipal incorporation and annexation. At MRSC, he has also advised local governments for over 24 years on diverse legal issues.
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