State Environmental Policy Act
Presentation by Geoffrey Thomas
to the students of URDP 498 in December 2001

Mr. Thomas is a Professional Wetlands Scientist and Environmental Planner with the City of Redmond. He has served as Planning Commissioner for the city of Olympia, and participant in his community as a board member with local homeowner’s association as well as being an environmental planner by trade. Mr. Thomas’ main area of specialization is the State Environmental Policy Act (his areas of specialization is wetlands, subdivisions, shorelines, and SEPA since 1984).

Mr. Thomas spoke about what SEPA is and main issues involved when he reviews a proposed action within the framework of SEPA.

SEPA is the State Environmental Policy Act and is in a sense a state-level version of NEPA (National Environmental Policy Act). It defines the government’s responsibility to consider environmental impacts when reviewing a range of proposals. SEPA represents an effort to consider the impacts of an action or decision before making that decision (an action is defined as anything from developing a comprehensive plan, to making a development improvement, such as a new building, for example).

SEPA was adopted quite a long time ago in 1970 or 1971. It was adopted during a time when there were very few land use regulations to protect the environment or components of the environment (like the built environment). SEPA was intended to provide local governments 1) responsibility to evaluate environmental impacts associated with a decision, 2) flexibility to apply conditions in the face of uncertainty when faced with the absence of regulation in order to face impacts of a decision

Few zoning ordinances existed in 1970 to protect wetlands, and it was through SEPA that a local government was authorized to protect those environmental components. There has been some discussion on a state-wide level as to whether we still need SEPA. The reason the discussion occurred was that under the GMA most of our jurisdictions have complex ordinances to protect the environment, and the idea being that now we have all those regulations under the GMA, and that perhaps we don’t need SEPA. But there will always be a proposal out there for which you don’t have regulations, that will always be the case; SEPA provides us that pool of resources, that is actually used on a daily basis in Redmond. SEPA is there if a regulator needs it..

How does SEPA fit into government?

1. First, all proposals and actions must be evaluated under SEPA, unless “categorically exempt.” SEPA has a series of exempt activities, including subdivisions of properties where you’re creating less than 10 lots, adding under a 100 cubic yards of fill; other exemptions include school closures, there are 4-6 pages of exemptions, one of the first things he does in an application is to see if it’s categorically exempt, if not, ten he has to take it through the SEPA process.

2. Determining a lead agency? It’s the smallest government unit for a decision. Redmond is often a lead agency as a city. In the case of need to issue a decision to fill, or something like this; the smallest level of government becomes the lead agency. For example, if the lead agency decision is between the Washington State Dept. of Ecology and the city, and if all these organizations require a variety of permits, Redmond will get that “lead agency” status and would have to issue their own permit approvals.

3. Threshold determinations? The lead agency, for non-categorically exempt, needs to review a SEPA checklist. That checklist is a 17-page questionnaire (50-85 questions, what kind of soil is on the property, what kind of water is on the property, the lead agency will review that checklist. This checklist will help guide all application materials, and based on the materials provided, help to determine whether or not a probable adverse environmental impact will be caused. This is the role of the SEPA Checklist.

The city has the ability and the responsibility, based on the information provided by the applicant, to research that information provided to the city and ensure that it is accurate. Although things can be categorically exempt, SEPA requires local governments to consider whether a series of actions, including exempt actions, represent environmental impact. They can determine that all these categorically exempt actions represent something that collectively is not categorically exempt (this is not a common event in some parts of Washington State, for example, in southwest Washington). Some citizens or developers will apply for a fill of less than 100 cubic yards, knowing that volume is exempt, but then they’ll try to apply for that fill of less than 100 cubic yards each week.

Regulators will review an application and determine whether a proposal “poses a “probable, significant, or adverse environmental impact.” One of the key concepts is that “environment” includes both the natural and the built environmental. SEPA is misnamed, in Mr. Thomas’ opinion, as it should be the State Impact Minimization Act due to the fact that SEPA takes into account both types of environments. For example, street systems and pedestrian walkways also represent the environment; even in a more sophisticated jurisdiction like Redmond, people tell Mr. Thomas that he can’t apply conditions on my proposal because it’s not consider an environmental impact; but the built environment is indeed included, and such things as sidewalks are affected.

How does SEPA define impacts?

As a regulatory planner, Mr. Thomas reviews a proposal for “probable, significant, or adverse environmental impact” based on the proposed actions and those on his SEPA checklist. He next considers mitigation measures, which an agency or the applicant will implement as part of the proposal; this will include any mitigation measure required by development regulations, comprehensive plans, or any other existing environmental rules or laws. This comes right out of Washington State law.

By looking at the checklist, SEPA allows Mr. Thomas to place conditions on a proposal that may not exist in development regulations in order to mitigate impacts caused by a proposal. In Mr. Thomas’ view, most important is “politics, politics, politics.” The life of a planner is heavily affected by politics. As a regulatory planner, he has a mandate to determine what the law says more than what politically you’re able to do. But in some jurisdictions, politicians will allow that planner to place restrictions on a proposal that would not be allowed in another jurisdiction. On other hand, the mitigating measure can be appealed by the applicant. Once a planner overcomes any political hurdles, the next step to get over legal hurdles. A planner has to have to have a firm legal basis, or believe in brinkmanship (see who blinks first). A planners’ focus can be placed on a negotiatory process about how to use tools that may not be in your codes, but that may really be necessary. SEPA is a very gray law, but a very important law.

The key words in determining whether or not a proposed action will have an impact depends on its determination as “probable, significant, or adverse”. Probable means likely to occur rather than just possible to occur. This goes index to politics and law, and on how a planner can leverage to get something mitigated. An applicant can fairly successfully contest the “probable” evaluation. The “significant” element, again is that a lot of decision-making that has to occur; a lot of value judgments are passed when a planner is working with SEPA. SEPA’s grayness and the flexibility, as influenced by the political and legal framework, is how SEPA has to be considered by a regulatory planner.

After the planner reviews the applicant’s documents to determine if a “probable, significant, or adverse” impact will be caused, the next step is to make a “threshold determination”. That determination is a document that can be appealed, or accepted. There are three different documents: a DS (Determination of Significance), a MDNS (Mitigated Determination of Non-Significance), and a DNS (Determination of Non-Significance).

DS – This is a determination of significance and results in an Environmental Impact Statement (EIS). EIS are only done 2% of the time, yet everyone has heard of them, unlike the DNS (Determination of Non-Significance). A DS means that the planner has determined that there are significant impacts on the environment, but that he/she cannot identify which mitigating measures are required. As a result, the city or the applicant has to go out and do a study, usually at large expense, to determine the range of the impact, and to determine a range of alternatives (not doing the project, doing the project differently, doing compensatory mitigation such as making a wetland other) or other mitigation measures. That thick document of the EIS will be used to identify what conditions in an EIS will be used in a proposal. All comprehensive plans go through an EIS process, but most projects do not go through an EIS process.

MDNS – A sheet of paper that identifies what conditions will be applied to a project in order to avoid impacts that would otherwise be caused by that project; for example, requiring a traffic signal at a new development because of more vehicleships, but because of development regulations and failed to identify the need for a traffic signal, and therefore you use SEPA. It’s being able to develop conditions to mitigate for that impact.

DNS – This is the most commonly issued decision of them all. It means that existing regulations are good enough to control the impacts caused by this development, and therefore that the planner has decided not place any more restrictions on a project.

What can jurisdictions fail to do? They can fail, for example, to demonstrate in writing that a MDNS has been properly issued. This goes index to the question, can a planner apply conditions arbitrarily? A planner can by no means decide that things need to be done a certain way because the planner feels that way. That planner needs to demonstrate his/her rationale. Many jurisdictions don’t provide the proper paperwork and this opens planners up to a possible lawsuit because it looks like they are making arbitrary and capricious decisions. Planners need therefore to issue firm written statements.

SEPA clearly defines those four components that are required for the statement: 1) identify the impacts caused by the project; 2) identify policies that have been adopted as a city that help determine that there is an impact (you can’t just say that the lead planner believes something, you need to have something in your SEPA policies, such that you value “best available science”, you need to identify something that supports the decision); 3) clearly identify the mitigating measures, you have to be very specific; 4) clearly demonstrate that the mitigating measures are proportionate to the impact and capable of being accomplished. For example, a planner cannot simply require a single-family home owner to mitigate for impacts to a wetland by having them do 30-40 acres of wetland mitigation, as this would contradict “takings” laws and cases.

At the end of his presentation, Mr. Thomas distributed copies of his presentation slides, a flowchart of the SEPA review process as it is described in the SEPA handbook, and excerpts from WAC 197-11-330 “Threshold Determination Process” and WAC 197-11-660 “Substantive Authority and Mitigation”.

Prepared by Nathaniel Trumbull