1. 1 SEPA/NEPA Compliance for Major Projects January 26, 2006 Law Seminars International Eric Laschever Stoel Rives LLP (206) 386-7600

2. 2 Overview Phased Review Regulatory Reform Joint NEPA/SEPA Review

3. 3 Phased Review WAC 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.

4. 4 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

5. 5 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)197-11-060

6. 6 NEPA Tiering Sec. 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

7. 7 Regulatory Reform 1990-1995- The End of SEPA 43.21C.240 Planned Actions

8. 8 RCW 43.21C.240 GMA 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.

9. 9 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.

10. 10 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

11. 11 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

12. 12 WAC 197-11-172 Project 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 addressed project’s probable significant adverse environmental impacts

13. 13 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.

14. 14 Appeals Limited No reported cases

15. 15 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

16. 16 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

17. 17 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).” 43.21C.030

18. 18 Joint Review: Boss v. WSDOT 113 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.

19. 19 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