Administrative and Judicial Appeals Under SEPA The Latest Word on Compliance with SEPA/NEPA January 25, 2006

1. Administrative and Judicial AppealsUnder SEPAThe Latest Word on Compliance with SEPA/NEPAJanuary 25, 2006 David S. Mann Gendler & Mann, LLP 1424 Fourth Ave., Suite 1015 Seattle, WA 98101 206 621-8868 mann@gendlermann.com www.gendlermann.com

2. SEPA Administative Appeals: In a Nutshell • Discretionary with local government • Must be combined with review of related government action • Generally strict time limitations for appeals • Subject to regulatory reform requirements of one open record hearing and one closed record appeal • Responsible Official must be given substantial deference

3. Administrative Appeals are Discretionary With Agency • SEPA grants control of the decision to allow appeals to the agency or local government • If an administrative appeal is available, the procedures must be codified in the agency rules or local government code See RCW43.32C.075(3) WAC 197-11-680(2)

4. What if an administrative appeal is not available? • LUPA allows for a SEPA record to be created in superior court: • RCW 36.70C.120 provides: (1) When the land use decision being reviewed was made by a quasi-judicial body or officer who made factual determinations in support of the decision and the parties to the quasi-judicial proceeding had an opportunity consistent with due process to make a record on the factual issues, judicial review of factual issues and the conclusions drawn from the factual issues shall be confined to the record created by the quasi-judicial body or officer, except as provided in subsection (2) through (4) of this section. * * * (3) For land use decisions other than those described in subsection (1) of this section, the record for judicial review may be supplemented by evidence of material facts that were not made part of the local jurisdiction's record.

5. What if an administrative appeal is not available? • The APA also allows for a SEPA record to be created in Superior Court: RCW 34.05.562 provides: The court may receive evidence in addition to that contained in the agency record for judicial review, only if it relates to the validity of the agency action at the time it was taken and is needed to decide disputed issues regarding: * * * (c) Material facts in rule making, brief adjudications, or other proceedings not required to be determined on the agency record.

6. What decisions are subject to administrative appeal? • Final Threshold Determinations • (DS, DNS, MDNS) • Determinations of Adequacy of a Final EIS or Final Supplemental EIS • Exercise of SEPA substantive authority to condition or deny

7. Combined Hearings • SEPA administrative appeal hearings must generally be combined with hearings on related government actions (RCW 43.21C.075(2)(a)) • Three notable exceptions: • Appeals of Determination of Significance • Appeals of DNS/MDNS when combined with hearing where hearing body is making final decision or recommendation on underlying action • Appeals of adequacy of FEIS where decision was made by agency and agency is project proponent (RCW 43.21C.075(3)(b).

8. Administrative Hearings Are Limited • Pursuant to Regulatory Reform, SEPA administrative hearings (generally**) are limited to: • One Open Record Hearing, and • One Closed Record appeal hearing RCW 36.70B.050, .060; WAC 197-11-680(2

9. Short deadlines for appeal • General rule: Appeals must be commenced within any time limitation for reviewing the government action (RCW 43.21C.075(2)(c)) • Under RCW 36.70B.110(9), if the local government does provide an appeal, it must say so in its “notice of decision” and allow 14 or 21 days. See also WAC 197-11-680(3)(vii)

10. Notice requirements • Old Rule: SEPA does not specifically require notice of time and place for bringing an appeal • Enough if government gives actual and substantive notice that an appealable decision was made. (see e.g. Citizens for Clean Air v. Spokane 114 Wn.2d 20 (1990) • New Rule: RCW 36.70B.110(9) requires that a local government’s “Notice of Decision” include notice of a SEPA appeal if allowed.

11. Successive Appeals • General Rule: a local government or agency may permit only one administrative appeal of a SEPA threshold determination • Exception – it is possible for there to be successive appeals before other agencies (e.g. – SHB, GMHB)

12. Creating the record • SEPA mandates that if an administrative appeal is allowed, the agency must create an adequate record: • “Shall provide for the preparation of a record for use in any subsequent appeal proceedings, and shall provide for any subsequent appeal proceedings to be conducted on the record, consistent with other applicable law. An adequate record consists of findings and conclusions, testimony under oath, and taped or written transcript. “ RCW 43.21C.075(3)(c).

13. Standard of Review • Open record hearings are generally heard “de novo.” • Threshold Determinations are reviewed under a “Clearly erroneous” standard • Adequacy of EIS determinations are reviewed under a “rule of reason” • Deference must be afforded the responsible official • Closed Record Appeals are generally reviewed under a clearly erroneous standard for questions of law and substantial evidence for questions of fact

14. Does a failure to comment eliminate standing to appeal? • WAC 197-11-545 provides that a failure to timely comment on a properly noticed SEPA document “shall be construed as lack of objection to the environmental analysis.” • Does WAC 197-11-545 eliminate standing to those that fail to comment? • Regulatory, not statutory • No reported case law • May only apply to failure to comment on DEIS

15. Special SHB Provisions • The SHB “may” be designated as the reviewing agency: • RWC 43.21C.075(7): Jurisdiction over the review of determinations under this chapter in an appeal before an agency or superior court shall upon consent of the parties be transferred in whole or part to the SHB. The SHB shall hear the matter and sign the final order expeditiously. The Superior Court shall certify the final order of the SHB and the certified final order may only be appealed to an appellate court.

16. Special SHB Provisions - continued • Under the SMA, shoreline decisions are made first by local governments and may then be appealed to the SHB. Prior to 1994, it was possible to appeal a SEPA procedural determination to both the local government and the SHB • RCW 43.21C.075 now states: “in the case of an appeal regarding a project or other matter that is also the subject of an appeal to the SHB, the SHB shall have sole jurisdiction over both the SEPA appeal and SMA appeal.”

17. The Scope of Review before the SHB, PCHB, and FPAB is “de novo” and is not confined to the record developed before the local agency Threshold determinations are reviewed under a “clearly erroneous” standard The adequacy of an EIS is reviewed under a “rule of reason” Deference must be afforded the responsible official State Environmental Hearings Boards– Standard of Review

18. Growth Management Hearings Board – Standard of Review • The scope of review by the Growth Management Hearings Boards is based on the record developed before the agency • Threshold determinations are reviewed under the “clearly erroneous” standard • The adequacy of an EIS is reviewed under a “rule of reason” standard • Deference must be given to the responsible official

19. SEPA Judicial Appeals: In a Nutshell • Must be Combined with Appeal of Underlying Action • No Independent Appeal Authority • Timing is Dependent on Underlying Action • Standard of Review is Dependent on Type of Decision Appealed

20. Judicial Review Must Be Combined With Underlying Action • RCW 43.21C.075(6)(a): • Judicial Review under this chapter shall without exception be of the governmental action together with its accompanying environmental determination • Defensive Appeals? Watch out for situation in Lakeside Industries v. Thurston Cy. 119 Wn.App. 866 (2004)

21. No Independent Appeal Authority: Appeals Must Be Brought Under Statute Controlling Underlying Action • Land Use Petition Act • Administrative Appeals Act • Writ of Review

22. Land Use Petition Act “LUPA” • Chapter 36.70C RCW • Applies to “Land Use Decisions” • e.g., rezones, conditional use permits, subdivision approvals, etc. • Made by a “Local Jurisdiction • Defined as a County, City or Incorporated Town

23. Administrative Procedures Act “APA” • Chapter 34.05 RCW • Applies to actions of state agencies and boards • Includes project proponents (e.g. WSDOT, DNR) • Regulatory agencies (e.g. DOE, DNR) • Review bodies (e.g., SHB, PCHB, GMHB, FPAP)

24. Writ of Certiorari • Chapter 7.16 RCW • Applies to special purpose governmental entities such as ports, water districts, transit authorities

25. Timing of Appeal Is Based on Underlying Decision • RCW 43.21C.075(5)(c): • “If there is a time period for appealing the underlying governmental action, appeals under this chapter shall be commenced within such time period. The agency shall give official notice stating the date and place for commencing an appeal.” • LUPA – 21 days: RCW 36.70C.040(3) • APA – 30 days: RCW 34.05.542(3) • Writ – 21 days?

26. Effect of Multiple Decisions; Use of the Notice of Action Taken • As a general rule, if multiple governmental actions will be based on a single SEPA document, the document can be challenged with any one of the underlying decision • SEPA provides for an optional “Notice of Action Taken” which, when used limits procedural appeals. RCW 43.21C.080

27. Standard of Review is Determined By Decision Appealed • Different Standards of review for: • Threshold determinations • Determination of Significance (DS) • Determination of Nonsignificance (DNS) • Mitigated DNS • Adequacy of EIS or SEIS

28. Standard of Review: Threshold Determinations • Decision of government agency to be accorded substantial weight – RCW 43.21C.090 • “Clearly Erroneous” • A decision is “‘clearly erroneous’ when, even where there is evidence to support the decision, the reviewing body is ‘left with the definite and firm conviction that a mistake has been committed.’” Wenatchee Sportsmen Association v. Chelan County, et al., 141 Wn.2d 169, 176 (2000). ; Hayden v. Port Townsend, 93 Wn.2d 870, 880 (1980); Cougar Mountain Associates v. King County, 111 Wn.2d 742, 747, 755 P.2d 264 (1988).

29. Standard of Review: Threshold Determinations • In reviewing a decision under the clearly erroneous standard, the court is required to “examine the entire record and all the evidence in light of the public policy contained in the legislation authorizing the decision.” Cougar Mountain, 111 Wn.2d at 747 • the record and evidence must demonstrate that “environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA,” and that the decision to issue an MDNS was based on information sufficient to evaluate the proposal’s environmental impact.Anderson v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997).

30. Standard of Review: EIS or SEIS • The adequacy of an EIS is a question of law subject to de novo review. • Weyerhaeuser v. Pierce County, 124 Wn.2d 26, 37-38 (1994); Org. to Preserve Agric. Lands {OPAL} v. Adams County, 128 Wn.2d 869, 875 (1996); Klickitat Cy. Citizens Against Imported Waste v. Klickitat Cy. 122 Wn.2d 619, 632 (1993).

31. Standard of Review: EIS or SEIS • Adequacy is judged by the "rule of reason," which requires a “reasonably thorough discussion of the significant aspects of the probable environmental consequences of the agency’s decision. Klickitat Citizens 122 Wn.2d at 633. • While the court should give the agency determination substantial weight, the court’s role is also to determine whether the proposed action's environmental effects are disclosed, discussed and substantiated by opinion and data. Citizens Alliance To Protect our Wetlands(CAPOW) v. City of Auburn, 126 Wash.2d 356, 362 1995); • The level of detail must be commensurate with the importance of the environmental impact and the plausibility of alternatives. Citizens v. Klickitat County, 122 Wash.2d 619, 641 (1993).