Since its adoption over 40 years ago, the State Environmental Policy Act (SEPA), chapter 43.21C RCW, has been a cornerstone in the practice of land use and environmental law. SEPA’s reach extends beyond those specific practice areas, however, and applies to most actions of any state or local government agency. It ensures that agencies identify and consider the potential environmental consequences or “impacts” of any proposed action. It also provides agencies the authority to mitigate identified impacts or even deny proposed actions on the basis of any identified significant adverse impacts. SEPA has been prominent in the land use and environmental arena for much of its history, but it now stands at a crossroads. A dense and complex environmental regulatory framework has evolved over SEPA’s history, causing many practitioners and stakeholders to complain that the SEPA process is unnecessarily duplicative such that it should be streamlined and scaled back. Simultaneously, others continue to use SEPA review as a gap-filling mechanism to advance policy objectives and pursue more rigorous environmental protections where, they argue, existing regulations are insufficient to provide necessary protection. Any lawyer advising a client with a proposed action subject to environmental review under SEPA needs to be aware of the ever-evolving role of the statute and its application to their client’s proposal.
SEPA requires state and local governmental agencies to review “actions” which broadly include “activities . . . entirely or partly financed, assisted, conducted, regulated, licensed, or approved by agencies.” WAC 197-11-704. In the land use and environmental context, this includes almost every permit issued for a project, as well as land use planning documents and adoption of regulations. The agency issues a threshold determination for each action. A “determination of non-significance” or “DNS” means that the action is not likely to have probable, significant adverse environmental impacts and may proceed without further SEPA analysis. Alternatively, an agency can issue a “Determination of Significance” or “DS,” which indicates that an action is likely to result in probable, significant adverse environmental impacts. An impact is “significant” when it is more than likely that the proposed project will have a “reasonable likelihood of more than a moderate adverse impact” on the environment. WAC 197-11-794. A DS prompts a more thorough review of a proposed action through a lengthy (and often expensive) environmental impact statement (EIS) that investigates those identified impacts and considers alternatives to the proposal and mitigation measures. A hybrid of the DNS and DS is known as a “mitigated DNS,” which allows an agency to impose conditions on a project that are adequate to mitigate the action’s impacts to a less than significant level such that the agency may proceed to reach a decision on the proposed action without requiring an EIS.
SEPA was patterned after the National Environmental Policy Act (NEPA), a federal statute that requires federal agencies substantive authority in contrast to that of NEPA. NEPA imposes a process for agency consideration of impacts before taking a federal action, but does not require any particular substantive outcome, nor does it authorize decisions or denials not otherwise authorized by federal statute or regulation. By contrast, SEPA obligates agencies to use their substantive authority to condition or even deny an action if they identify significant adverse environmental impacts. This requirement provides interested parties the ability to challenge an agency’s action based on the potential environmental impacts of a proposed action.
While SEPA was one of the primary tools for environmental protection when it was adopted, over the past 40 years, other local, state, and federal environmental laws and regulations have become more complex and stringent, commensurate with a better scientific understanding of what is required to protect the environment. For example, storm water regulations and associated best management practices have changed dramatically and impose significant requirements for storm water quantity and quality management as a condition of development approval. Additionally, the Washington State Legislature has adopted new laws that require local governments and state agencies to directly address many of the environmental issues that they had previously relied on SEPA to resolve. In the land use arena, one of the biggest changes was the adoption in 1990 of the Growth Management Act (GMA), chapter 36.70A RCW, which requires local governments to adopt deregulations that designate and protect “critical areas.” The resulting GMA regulations are, in essence, localized environmental laws that protect sensitive areas such as streams, rivers, wetlands, fish and wildlife conservation areas, aquifer recharge areas, geologic hazard areas, and more.
Requiring SEPA review of project impacts that are now addressed by new and evolved federal, state, and local regulatory schemes creates a potentially duplicative regulatory framework that has prompted many to rethink SEPA and its role. Even though SEPA’s implementing regulations expressly allow agencies to rely on existing environmental regulations to discharge their obligations under SEPA, some advocates nonetheless rely on SEPA to push for mitigation or even denial of proposed actions beyond what those existing environmental regulations require. In response, other practitioners and stakeholders have been pushing to eliminate or streamline SEPA and reduce duplication more explicitly. . .
The above article appeared in the April/May 2014 issue of NW Lawyer. Access the full article by clicking the PDF above.