Header graphic for print
Science, Law & the Environment Emerging Topics in Environmental Law

Why Don’t the New SEPA Rules the Department of Ecology Recently Issued for Comment Include Amendments to the GMA/SEPA Integration Rules?

Posted in SEPA

The 2012 Legislature directed the Department of Ecology (DOE) to update the SEPA rules, to increase the exemptions from SEPA analysis, and to modernize the exemptions, recognizing the extensive changes in the substantive regulations that have occurred since the rules were last amended. 2012 S.S.B. 6406. The Legislature gave DOE until December 31, 2012 to increase the exemptions for specific developments, and until December 31, 2013 to finish the job of modernizing the rules.

In December of 2012 DOE proposed rules increasing the categorical exemptions, and those rules are now in effect. See, WAC 197-11-800(1)(c). In December 2013, DOE released proposed rules that are intended to finish the tasks assigned by the 2012 Legislature.

Those rules do accomplish the easy stuff. They deal with categorical exemptions (or the lack thereof) for developments in wetlands; they deal with rebuilding roads and bridges when the project does not add capacity; they increase the size of water main or sewer main that is exempt from eight inches to twelve inches; they exempt adoption of noise ordinances or electrical codes that increase environmental protection; they correct the names of agencies that have changed their names; they propose a new SEPA checklist that may be easier to respond to. There is nothing bad about that; and nothing that seems controversial.

In the same bill, however, the 2012 Legislature also amended RCW 43.21C.031, which defines “significant impacts,” to delete its reference to “planned actions,” and instead created a new section of SEPA – now RCW 43.21C.440, which deals with planned actions. Planned actions are actions for which the significant impacts were already addressed in the comprehensive planning process that a jurisdiction was required to go through under the Growth Management Act, RCW Ch. 36.70A. While the new RCW 43.21C.440 lifts the definition of “planned action” from the former RCW 43.21C.031, it adds new requirements and prohibitions to how development projects must be treated in the development review process. “A [local jurisdiction] shall determine during permit review whether a proposed project is consistent with a planned action ordinance adopted by the jurisdiction.” A [local jurisdiction] is not required to make a threshold determination and may not require additional environmental review, for a proposal determined to be consistent with the development or redevelopment described in the planned action. . .” RCW 43.21C.440(3). In other words, SEPA should no longer apply to actions that have been fully planned for in the local jurisdiction’s growth management planning.

But oddly, the new SEPA rules ignore RCW 43.21C.440, and indeed, DOE staff appears to think that it was nothing more than the Legislature catching up with where it was ten years ago. The DOE staff report explains on page 6:

“These sections of the SEPA Rule were adopted in the mid-1990s and addressed SEPA/GMA integration envisioned by the regulatory reform legislation from 1995.”

With due respect to DOE staff, the Legislature rarely passes a law that it believes is just codifying what the agencies it created have already embodied in the law. DOE’s assumption that a detailed new section of SEPA, creating mandatory obligations on local governments, was already dealt with in the mid-1990s, is simply not correct.

If Washington State had adopted its Growth Management Act first, it might never have adopted the State Environmental Policy Act (SEPA). Washington adopted SEPA in 1971, modeling it after the 1969 National Environmental Policy Act (NEPA), which was the brain-child of Washington Senator Henry (Scoop) Jackson.

As Senator Jackson explained on the Senate floor when he introduced NEPA, he believed that government officials could be trusted to make the right decisions for their communities – right politically, economically and environmentally – so long as before they made the decisions they had full information about the environmental impacts of their decisions. He thought that typically the advocates for any public action would provide government officials with all the information they needed about the political and economic issues. But he did not believe advocates for an action would provide information about the potential adverse environmental impacts of their proposals. And so NEPA was intended to insure that before any decisions significantly affecting the environment were made, the decision-makers had the full environmental information to consider along with the economic and political information.

Today, Senator Jackson’s comments seem sort of sweetly naïve. But in 1971 he was a political icon in Washington, and the Washington Legislature quickly followed the 1969 adoption of NEPA with Washington’s local version – SEPA.

Three years later, Oregon took a very different tack – adopting a growth management act. The premise of the growth management act was that growth should be planned for as a whole, that there should be urban growth areas with enough land to contain expected growth, and within which there should be plans and budgets to build the infrastructure – roads, utilities, schools, parks, emergency services – to service that growth. Outside of the urban growth areas, the land should be preserved for agriculture and forestry, and sprawl should be prohibited. Oregon never adopted anything like SEPA, and no one thinks of Oregon as being less progressive for it.

In the intervening years, there has also been an exponential increase in the prescriptive regulation of development and industry. The 1974 amendments to the federal Clean Water Act created a detailed system to control fill of wetland and discharge of pollutants into state waters. The Clean Air Act regulates air emissions. Historic preservation is now subject to local regulation as well as the National Historic Preservation Act. Without SEPA or NEPA, permitting authorities have a lot of occasion to consider and control the environmental impacts of development or industrial activity.

And then in 1990, Washington followed Oregon into growth management, requiring all cities and counties to protect critical areas and requiring most cities and counties to adopt comprehensive plans that provide for growth and development regulations that insure those plans are followed. The Legislature has required all counties and cities to adopt new shoreline master programs. Over the last 24 years that has led to an enormous amount of planning for growth, vastly more complicated land use codes, and a detailed system for maintaining “concurrency” of infrastructure needed by growth as growth happens.

Over time, SEPA has also changed, so that in practice today it bears little resemblance to the simple and practical role that Senator Jackson imagined for it. Today, when public bodies want to do something, SEPA is often viewed as paperwork that must be filled out to justify the decision they already made, with no serious effort to actually disclose the adverse environmental impacts or consider alternatives. On the other hand, public agencies that are supposed to build things and manage things spend increasing shares of their limited budgets on staff who write environmental impact statements and checklists, to document what the agency knows it will do. For private parties, it is a cause of sometimes years of delay and expense, which does not lead to better or different outcomes – just slower and more expensive outcomes. And it is a favored tool for those who seek to stop any particular proposal. But, it is also a sacred cow. There is no possibility that Washington will attempt a do-over.

The Legislature made a stab at regulatory reform in 1995, when it first introduced the concept of “planned action” into SEPA. But as the Legislature’s 2012 revisions show, that has had little practical impact in most jurisdictions. With rare exceptions, local jurisdictions are leery of actually saying as part of their comprehensive planning process that they have now planned for the consequences of growth, and it doesn’t need to be done again on a project-by-project basis. The reality is that only land use “junkies” or paid consultants can possibly sit through the comprehensive planning process. Neighbors of future individual projects are often shocked to learn that the project was legalized in a comprehensive plan some time back. And so, we continue to cling to SEPA project-by-project review, even after our comprehensive plans should have addressed the impacts of the growth we will be permitting.

That is not, however, an excuse for not updating the SEPA rules. The Legislature clearly did make changes to the law. They appear to have been hard-fought; the bill went through six drafts before being passed and Governor Gregoire vetoed two of its sections. It is DOE’s job to write rules that reflect the law as the Legislature passed it, and DOE should go back and finish the job.