Status Review

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SEPA/NEPA Compliance for Major Projects January
26, 2006 Law Seminars International Eric
Laschever Stoel Rives LLP [phone]
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Overview

• Phased Review
• Regulatory Reform
• Joint NEPA/SEPA Review

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Phased ReviewWAC 197-11-060(5)

• appropriate review to coincide with meaningful
  points in planning and decision-making processes.
  
• helps focus on issues ready for decision and
  exclude issues already decided or not yet ready.

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SEPA Phased Review

• appropriate when sequence is from
• nonproject document to a document of
• narrower scope
• from environmental document on specific proposal
  at an early stage to a subsequent environmental
  document at a later stage

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SEPA Phased Review

• not appropriate when
• sequence is from narrow project document to broad
  policy document
• it would divide larger system into exempted
  fragments or avoid discussing cumulative impacts
  or
• it would segment and avoid present consideration
  of proposals and their impacts that are required
  to be evaluated in a single environmental
  document under WAC 197-11-060 (3)(b) or
  197-11-305(1)

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NEPA TieringSec. 1508.28

• appropriate to help lead agency focus on issues
  ripe for decision and exclude from consideration
  issues already decided or not yet ripe.
• appropriate when the sequence of statements or
  analyses is from
• program, plan, or policy environmental impact
  statement to program, plan, or policy statement
  or analysis of lesser scope or to a site-
  specific statement or analysis.
• environmental impact statement on a specific
  action at an early stage to a supplement or a
  subsequent statement or analysis at a later stage
  

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Regulatory Reform

• 1990-1995- The End of SEPA
• 43.21C.240
• Planned Actions

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RCW 43.21C.240GMA Project Review

• local government determines requirements under
  local, state, and federal laws and rules provide
  adequate analysis of and mitigation for project
  action
• DNS or MDNS is proper threshold determination.

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RCW 43.21C.240(cont.)

• Local government makes determination if it
• considers the specific probable adverse
  environmental impacts of the proposed action and
  determines that these specific impacts are
  adequately addressed by the development
  regulations or other applicable requirements
• and bases or conditions approval on compliance
  with requirements or measures.

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WAC 197-11-164 Planned Action Definition and
criteria.

• GMA counties/cities may designate
• Environmental impacts adequately addressed in an
  EIS prepared for
• GMA comprehensive plan or subarea plan
• Fully contained community, a master planned
  resort, a master planned development, or a phased
  project

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WAC 197-11-164 (cont.) Planned Action
Definition and criteria

• subsequent or implementing projects
• in an urban growth area or a master planned
  resort
• not essential public facilities and
• consistent with comprehensive plan

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WAC 197-11-172Project review

• Planned action project review verifies
• project meets the description in
  ordinance/resolution
• will implement conditions or mitigation measures
  identified in ordinance/ resolution and
• Planned Action EIS adequately addressedprojects
  probable significant adverse environmental
  impacts

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WAC 197-11-172 Project Review (cont.)

• project threshold determination or EIS is not
  required.
• local government may place conditions on the
  project to mitigate nonsignificant impacts
  through the normal local project review and
  permitting process.
• public notice for planned action projects tied to
  the underlying permit.

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Appeals

• Limited
• No reported cases

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Recent Examples (2004-5)

• Lynwood City Center North
• Monroe Kelsoe Subarea Plan
• University Place Town Center
• City of Auburn- private project
• City of Covington- Town Center Plan

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Joint NEPA/SEPA Review

• Complex infrastructure projects
• NEPA and SEPA encourage coordination
• NEPA and SEPA discourage duplication
• Different level of experiences and comfort with
  joint documents

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Joint Review RCW 43.21C.150

• The requirements . . . pertaining to the
  preparation of a detailed statement . . . shall
  not apply when an adequate detailed statement has
  been previously prepared pursuant to NEPA
• Said prepared statement may be utilized in lieu
  of a separately prepared statement under RCW
  43.21C.030(2)(c).

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Joint Review Boss v. WSDOT113 Wn. App. 543

• Appeal of EIS for Tacoma Narrows Bridge
• Joint NEPA/SEPA EIS
• Boss argued that exemption applied only if the
  NEPA document was a separate existing document
• Division II concluded previously prepared means
  that the NEPA EIS must be prepared before the
  agency takes action.

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Joint Review Citizens for Safety v. WSDOT

• Unpublished Division I Case (2005 WL 2651499)
• Citizens sought to invalidate WSDOT permit to
  access White River Amphitheatre from state road
• Citizens previously had lost federal district
  court appeal against Bureau of Indian Affairs
• State superior court relied on Boss
• Division I decided case using doctrine of
  collateral estoppel