State Environmental Policy Act (SEPA) Growth Management Act (GMA)

1. State Environmental Policy Act (SEPA)Growth Management Act(GMA) Barbara Heavey King County Department of Development and Environmental Services (DDES) October 2005

2. SEPA Authority • RCW 42.21C • WAC 197-11 • KCC 20.44

3. SEPA History • Enacted in 1971 • Similar to NEPA (1969) • Companion to Shoreline Management Act (SMA) • Major source of regulatory authority for local jurisdictions until GMA and critical areas regulations (1990-91) • Regulatory Reform Act (1995)

4. RCW 43.21C includes: • Purposes • Declarations of responsibility • Guidelines for state and local agencies

5. SEPA Purposes • Encourage productive and enjoyable harmony between man and his environment • Prevent or eliminate damage to the environment and biosphere • Stimulate the health and welfare of man • Enrich the understanding of ecological systems and natural resources important to the state and nation

6. SEPA Components • Procedural • Substantive

7. Procedural • Must understand and consider the environmental consequences when making a decision that affects the environment • Must follow the procedures set out in the regulations

8. Substantive • May condition or deny a proposal based on the environmental consequences • Polygon Corp. v. City of Seattle (1978) may condition or deny even though the project meets all express requirements of other statues and ordinances • Limited by later amendments

9. SEPA Process • When presented with an action • that is not categorically exempt • the lead agency must: • consult with other agencies • consider the impacts on the environment and • make a threshold determination.

10. Action • New and continuing activities entirely or partly financed, assisted, conducted, regulated, licensed, or approved by agencies • New or revised rules, regulations, plans, policies or procedures • Legislative proposals

11. Action types • Project actions • Non-project actions

12. Project Action Decision on a specific project, such as construction or management activity located in a defined geographic area Specifically limited to agency decisions to: • License, fund, or undertake any activity that will directly modify the environment • Purchase, sell, lease, transfer or exchange natural resources, including publicly owned land, whether or not the environment is directly modified

13. Non-project Action Decision on policies, plans or programs • Legislation and regulations that contain standards controlling use or modification of the environment • Comprehensive land use plans & zoning • Policy, plan or program that will govern the development of a series of connected actions • Creation of a district or annexation to any city, town or district • Capital budgets • Road, street and highway plans

14. Categorical Exemptions • 27 specific exemptions; may be limitations • Local option to adopt “flexible thresholds” for minor new construction and critical areas • If exempt, no checklist, threshold determination or any documentation required • Not exempt if a series of actions that are physically or functionally related to each other and: • Some are exempt and some are not; or • Together may have a probable significant adverse environmental impact

15. Lead Agency • Designated when an agency is developing a proposal or is presented with a proposal • Agency with main responsibility for complying with procedural requirements • Only agency responsible for threshold determination and environmental impact statement • Non-lead agency is “agency with jurisdiction” and must be consulted

16. Determining Lead Agency • First agency developing proposal or presented with proposal • Regulations specify lead agency for specific projects • May enter into lead agency agreements • May petition state to resolve lead agency disputes • May “assume” lead agency status within 14 days of a DNS

17. Threshold Determination Process • Review the environmental checklist and other supporting documents • Request additional information • Consider mitigation measures • Consider previously prepared environmental documents

18. Threshold Determination Standard Does the proposal have a probable significant adverse environmental impact? • May be an impact in one location but not another • May be an impact regardless of the nature of the existing environment • Several marginal impacts considered together may result in a significant impact • May not be able to forecast impacts with precision • May affect sensitive or special areas to a significant degree • May establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment or may affect public health or safety • Not a balancing act

19. Threshold Determination • Determination of non-significance (DNS) • Mitigated determination of non-significance (MDNS) • Determination of significance (DS)

20. DNS • Notice and comment period • May have an administrative appeal in some jurisdictions • Shall withdraw before final decision if: • Substantial changes to a proposal make impact likely • Significant new information indicating probable impacts • Misrepresentation or lack of material disclosure

21. MDNS • DNS that includes mitigation measures • Early notice “DS likely” • Mitigations must be based on policies, plans, rules, or regulations formally designated and in effect when the MDNS is issued • Mitigations become a part of the proposal • Notice and comment period • May have an administrative appeal in some jurisdictions

22. DS • Environmental impact statement (EIS) is required • May be withdrawn and MDNS issued • May be an administrative appeal or immediate judicial appeal

23. EIS Process • 21 day “scoping” period for public and agency comment • Prepared by or under the direction of lead agency • May be agency imposed time limits • Draft EIS issued with 30 to 45 day comment period; may be public meeting • No appeal of DEIS • Final EIS includes response to comments, additional analysis • 7 day waiting period before final decision

24. EIS Content • Format and contents specified in WAC • Elements of the environment specified; only address those that are relevant • Reasonable alternatives must be considered, including “no action” • Analyze only environmental impacts; not required to document all impacts • Cost-benefit analysis is not required but may be included

25. Other Environmental Documents • Supplemental EIS • Same process as DEIS and FEIS except scoping is optional • May come before or after FEIS • Addendum • Provides additional information or analysis but does not substantially change the analysis of significant impacts and alternatives • May have different notice requirements based on time in the process • NEPA documents • May require additional public hearings

26. Use of Existing Documents • Adoption or incorporation by reference • Required when agency is acting on the same proposal except: • May assume lead agency status for DNS • Substantial changes in the proposal • New information or misrepresentation • Comments on DEIS warrant additional discussion beyond lead agency’s FEIS • A new TD is not required if the impacts are covered by the range of alternatives and impacts analyzed

27. Substantive Authority • First established judicially • May be conditioned or denied to mitigate the environmental impacts

28. Mitigation Measures • Mitigation measures shall be: • Based on policies, plans, rules, or regulations formally designated by the agency in effect when MDNS or DEIS is issued • Related to specific adverse environmental impacts clearly identified in an environmental document on the proposal • Reasonable and capable of being accomplished • Attributable to the identified adverse impacts of the proposal (nexus) • Must consider whether local, state or federal requirements or enforcement mitigate an impact

29. Denials • To deny an agency must find: • Significant adverse environmental impact identified in a FEIS or SEIS • Reasonable mitigation measures are insufficient • An agency is not required to deny a project

30. Administrative Appeals • Agencies may, but are not required to, establish administrative appeals • Only one “open record” hearing and one “closed record” per permit decision • Can not allow appeal of “intermediate” steps • One appeal of threshold determination or adequacy of EIS • May occur prior to final decision on permit • Procedural and substantive appeals must be consolidated with permit hearings except: • Appeal of a DS • Procedural decisions on an agency project prior to submittal of an application for a permit • Procedural decisions on non-project actions • Decision of responsible official entitled to substantial weight • Must use administrative appeal, if any, before judicial appeal

31. Judicial Appeals • Largely governed by other statutes • Must consolidate SEPA appeal with appeal of the underlying permit or decision

32. Growth Management Act (GMA): History • 1985 King County Comprehensive Plan • 1989 Chelan Conference • 1990 First GMA • 1991 Countywide Planning Revisions • 1991 KC Sensitive Areas Ordinance • 1995 Regulatory Reform Act; Best Available Science for critical areas • 1997 Buildable Lands Inventory; periodic review • 2004 Critical area compliance “deadline”

33. Urban growth Reduce sprawl Transportation Affordable housing Economic development Property rights Permits Natural resource industries Open space & recreation Environment Citizen participation & coordination Public facilities & services Historic preservation Shoreline Management* GMA Goals

34. GMA Applicability • Only fastest growing counties; others may opt in • County and all cities within the county must plan • Sanctions for non-compliance • Special district planning requirements vetoed

35. GMA Structure • Coordinated planning • “County-wide planning policies” • Ratification procedures for policies and amendments • Consistent Comprehensive Plans • Regulations consistent with plans • Enforcement through Growth Management Hearing Boards

36. GMA Required Actions • Adopt plan and implementing regulations • Establish urban growth boundaries • Designate and protect natural resource lands • Designate and protect critical areas • Infrastructure “concurrent” with growth • Transportation concurrency mandated • Level of service standards • King County school concurrency

37. Comprehensive Plans: Mandatory Elements • Land use • Housing • Capital facilities • Utilities • Rural • Transportation • Economic development • Parks and recreation

38. Comprehensive Plans: Urban Growth Area • Designated by county with cities consultation • All cities must be within • Can not annex or incorporate non-urban areas • Potential annexation areas designated • Most growth concentrated within Urban area • All other areas are rural or resource production areas • Rural areas zoned residential • Resource production areas include forest, agriculture, mineral • Non-resource uses are limited

39. Critical Area Required Actions • Designate • Protect • Include Best Available Science (BAS)

40. GMA Critical Areas • Wetlands* • Areas with critical rechargeing effect on aquifers used for potable water (CARA) • Fish and wildlife habitat conservation areas • Frequently flooded areas • Geologically hazardous areas* *defined by statute

41. Critical Areas Definitions • RCW list is the minimum, local jurisdictions can do more • Substantive changes to statutory definitions are not allowed • Jurisdictions may adopt definitions for undefined terms as long as they “comply” with the statute

42. Coal mine hazard Erosion hazard Flood hazard Floodplain Zero-rise flood fringe Zero-rise floodway FEMA floodway Channel migration zone Landslide hazard Seismic hazard Steep slope hazard Volcanic hazard Aquatic areas Streams Lakes Marine shoreline Critical aquifer recharge Wetlands Wildlife habitat conservation Wildlife habitat networks King County Critical Areas

43. Critical Area Guidance • Wn. Depart. Of Community Trade & Economic Development (CTED) required to adopt minimum guidelines • Advisory, must be considered; give serious thought

44. Critical Areas Designation • Mapping • Geohazards, flood hazard, CARA • Criteria for identifying • Wetlands, stream classifications • Some have both map and criteria

45. Critical Area Protection • Protect development from hazard areas • Adequately protect development • Assure development does not result in harm to other properties • Protect critical areas from development • No net loss of value & functions of eco systems within a watershed or other functional catchment area • No less protection for urban areas; but may vary buffers if no-net-loss standard met

46. Best Available Science (BAS) In designating and protecting critical areas…counties and cities shall include the best available science in developing policies and development regulations to protect the functions and values of critical areas. In addition, counties and cities shall give special consideration to conservation or protection measures necessary to preserve or enhance anadromous fisheries. (RCW 36.70A.172)

47. BAS: CTED Guidance • WAC 365-195 sections 900-925 • Description of the standards for a “valid scientific process” • Departures from “science-based” recommendations • Guidance when there is inadequate scientific information • Precautionary or no-risk approach • Interim measures and adaptive management

48. BAS: Valid Scientific Process • Findings critically reviewed by qualified scientific experts in the field • Methods used are standard in the field or peer reviewed • Conclusions are logical and inferences reasonable given the data and methods • Data have been analyzed using standard or peer reviewed quantitative or statistical methods • Data and findings are place in proper context • Assumptions, analytical techniques and conclusions are well referenced to relevant, credible, scientific literature

49. BAS: Growth Board Review Focus • Is the scientific evidence in the record? • Did the analysis by the local decision-maker of the scientific evidence and other factors involve a reasoned process? • Was the decision within the parameters of the act? (RCW 36.70A.172(1))

50. BAS: Judicial Interpretations • Not just a procedural requirement; BAS must be considered substantively • Must be considered and balanced with other goals of the GMA • May be possible to “depart” from BAS based on local circumstances; not clear yet what would be sufficient