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9-WA-a State Environmental Overview

The Washington State Environmental Policy Act (SEPA), chapter 43.21c RCW, requires all governmental agencies to consider the environmental impacts of a proposal before making decisions. Washington uses an Environmental Checklist and Environmental Review (ER) to provide information to help government agencies identify impacts from their proposals and determine whether an Environmental Impact Statement (EIS) is necessary.


Flowchart Narrative

9-WA-a.1 – Proposal for Agency Action

The developer must submit a project proposal or permit application to the relevant agency. Proposals include public projects or proposals by agencies and proposals by developers. The developer’s proposal may be put forward as an objective, as several alternative means of accomplishing a goal, or as a particular or preferred course of action. WAC 197-11-060. Proposals or parts of proposals that are related to each other closely enough may be treated in the same environmental documents.

9-WA-a.2 to 9-WA-a.3 – Is SEPA Review Required?

SEPA environmental review is required for any state or local agency decision that meets the definition of an “action” and is not categorically exempt. Actions are divided into two categories, “project actions” and “non-project actions.”

  • Project Actions include: Agency decisions to license, fund, or undertake a specific project.
  • Non-Project Actions include: Agency decisions on policies, plans, and programs, including adoption or amendment of rules, ordinances, or regulations that will regulate future projects.

To determine if SEPA review is required the developer should accurately define the proposal. Defining the proposal involves identifying all related and interdependent pieces of the proposal including all permits that the project will require.

9-WA-a.4 to 9-WA-a.5 - Is the Project Covered by a Categorical Exemption?

SEPA contains a list of actions that are statutorily exempt from SEPA review. However, if some aspect of the proposal is exempt while other actions are not exempt, the developer will be required to comply with the full SEPA review. WAC 197-11-305.

Examples of specific permits exempted include:

  • Permits from the Department of Natural resources for drilling for which no public hearing is required under RCW 79.76.070 are exempted from SEPA requirements (geothermal test drilling). WAC 197-11-830.
  • Requests by the developer to the Department of Transportation for the issuance of road approach permits and right of way rental agreements are exempted from SEPA requirements. WAC 197-11-860.

9-WA-a.6 – Determine Lead Agency

“Lead Agency” is the agency with the main responsibility for complying with SEPA’s procedural requirements. The first agency receiving an application for or initiating a non-exempt proposal must determine the lead agency for that proposal. The lead agency is determined using the criteria outlined in WAC 197-11-926 through 197-11-944. Once the lead agency is chosen, the initial agency must notify them of the proposal and forward all associated documents. WAC 197-11-924. For most geothermal proposals, the lead agency will be the Department of Natural Resources.

The following rules apply for determining the “Lead Agency”:

  • Lead agency for governmental proposals: When an agency initiates a proposal, it is the lead agency for that proposal. If two or more agencies share in the proposal, the agencies must determine by agreement which of them is to be the lead agency. Whenever possible, agency staff carrying out SEPA procedures should be different from agency staff making the proposal. WAC 197-11-926.
  • Lead agency for public and private proposals: When the proposal involves both private and public activities, it must be characterized as either a private or a public project for the purposes of lead agency designation, depending on whether the primary sponsor or initiator of the project is an agency or from the private sector. If agency and private interests are too intertwined to make this characterization, then the project must be considered a public project. WAC 197-11-928.
  • For proposed private projects for which there is only one agency with jurisdiction, the lead agency must be the agency with jurisdiction. WAC 197-11-930.
  • For proposals for private projects that require nonexempt licenses form more than one agency, when at least one of the agencies requiring such a license is a county/city, the lead agency must be the county/city where the greatest portion of the proposed project area, as measured in square feet. WAC 197-11-932.
  • When a proposed private project requires nonexempt licenses only from a local agency other than a county/city and one or more state agencies, the lead agency must be the local agency. WAC 197-11-934.

Notwithstanding the lead agency designation criteria above, the lead agency for proposals within the areas listed below must be as follows:

  • For all governmental actions relating to energy facilities requiring certification under chapter 80.50 RCW, the lead agency must be the Energy Facility Site Evaluation Council (EFSEC);
  • For all private projects relating to the use of geothermal resources under chapter 79.76 RCW, the lead agency must be the Washington State Department of Natural Resources; and
  • For all private projects requiring a license or lease to use or affect state lands, the lead agency must be the state agency managing the lands in question. WAC 197-11-938.

9-WA-a.7 to 9-WA-a.8 - Is the Project Covered by an Existing State Environmental Document?

The developer may be permitted to use another environmental document to cover the proposed project. WAC 197-11-965. An agency may use environmental documents that have previously been prepared in order to evaluate proposed actions, alternatives, or environmental impacts. The proposals may be the same as, or different than, those analyzed in the existing documents. WAC 197-11-600.

Any agency acting on the same proposal must use an environmental document unchanged, except in the following cases:

  • For a Determination of Non-Significance (DNS), an agency with jurisdiction is dissatisfied with the DNS, in which case it may assume lead agency status;
  • For DNSs and Environmental Impact Statements (EIS), preparation of a new threshold determination or supplemental EIS is required if there are substantial changes to a proposal resulting in likely significant adverse environmental impacts or new information indicating a proposal’s probable significant adverse environmental impacts.
  • For EISs, the agency concludes that its written comments on the DEIS warrant additional discussion for purposes of its action than that found in the lead agency’s Final Environmental Impact Statement (FEIS).

Existing documents may be used for a proposal by employing one or more of the following methods:

  • ”Adoption” where an agency may use all or part of an existing environmental document to meet its responsibilities under SEPA. (Note: Agencies acting on the same proposal for which an environmental document was prepared are not required to adopt the document), or
  • ”Incorporation by reference” where an agency preparing an environmental document includes all or part of an existing document by reference. WAC 197-11-600.

9-WA-a.9 to 9-WA-a.10 – Is the Project Covered by a NEPA Document or Require NEPA Review?

Some projects may require the developer to comply with both NEPA and SEPA requirements. In these situations the state of Washington allows the developer to adopt NEPA documents as a substitute for SEPA procedures. If NEPA and SEPA review have yet to be conducted, the lead agency and federal agencies may agree to concurrent environmental review which will satisfy all requirements.

An agency may adopt any environmental analysis prepared under the National Environmental Policy Act (NEPA) using the above methods. A NEPA environmental assessment may be adopted to satisfy requirements for a DNS or EIS, and an agency may adopt a NEPA EIS as a substitute for preparing a SEPA EIS if:

  • The requirements of WAC 197-11-600 and 197-11-630 are met; and
  • The federal EIS is not found inadequate by a court, by the Council on Environmental Quality (CEQ) under NEPA regulations, or by the administrator of the US EPA under section 309 of the Clean Air Act. WAC 197-11-610.

9-WA-a.11 – Initiate Environmental Review Process

If the project is not covered by another environmental document and SEPA review is required, then the developer must initiate the state environmental review process.


References



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