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Environment

Below are some frequently asked questions and other selected inquiries that MRSC has received related to local government environmental issues. Click on any question to see its answer.


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Does an environmental impact statement (EIS) expire?
Reviewed: 04/16

There is no expiration period for an EIS. However, there likely are expiration periods for project permit applications for which an EIS was prepared; a new application for a previously proposed but not acted upon project triggers new environmental review. DOE's SEPA Handbook (rev. 2004), addresses environmental review in this circumstance:

SEPA documents do not have expiration dates. After SEPA is completed, if a proposal is delayed so that new permits must be applied for, environmental review may be limited to verifying that there is no new information, regulatory changes, or changes to the proposal that would require additional review. (This is true even if the applicant has changed.) As long as there are no changes to be addressed, no additional paperwork is required and agencies may proceed with permit decisions.

See WAC 197-11-600 , which addresses the use of existing environmental documents.

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Can a school district act as a lead agency for SEPA compliance?
Reviewed: 09/15

Yes, a school district can (actually, should) act as the lead agency regarding a project it proposes. WAC 197-11-926(1) states in part:

When an agency initiates a proposal, it is the lead agency for that proposal. If two or more agencies share in the implementation of a proposal, the agencies shall by agreement determine which agency will be the lead agency.

"Agency" is defined in WAC 197-11-714(1) as follows:

"Agency" means any state or local governmental body, board, commission, department, or officer authorized to make law, hear contested cases, or otherwise take the actions stated in WAC 197-11-704, except the judiciary and state legislature. An agency is any state agency ( WAC 197-11-926) or local agency ( WAC 197-11-762).

"Local agency" under WAC 197-11-762, referenced above in WAC 197-11-714(1), is defined as "any political subdivision, regional governmental unit, district, municipal or public corporation, including cities, towns, and counties and their legislative bodies." (My emphasis.)

Lastly, WAC 197-11-704, also referenced above in WAC 197-11-714(1) (“any . . . local governmental body . . . authorized to . . . otherwise take the actions stated in WAC 197-11-704. . .”) includes within the definition of “project action”:

 . . . agency decisions to:
(i) . . . fund, or undertake any activity that will directly modify the environment, whether the activity will be conducted by the agency, an applicant, or under contract.

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Is a water line extension project exempt from SEPA?
Reviewed: 03/15

Yes, if the line is 12 inches or less in diameter and the water line does not cross any "lands covered by water." WAC 197-11-800 (23)(b).

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Is the establishment of a transportation benefit district subject to SEPA?
Reviewed: 01/15


No. The categorical exemption in WAC 197-11-800(16) was amended in May 2014 (WSR 14-09-026) to add "special purpose district," to make the following actions exempt from SEPA (underlined words were added):

Local improvement districts and special purpose districts. The formation of local improvement districts and special purpose districts, unless such formation constitutes a final agency decision to undertake construction of a structure or facility not exempted under WAC 197-11-800 and 197-11-880. A special district or special purpose district is a local government entity designated by the Revised Code of Washington (RCW) and is not a city, town, township, or county.

Since a transportation benefit district is a type of special purpose district, its establishment is exempt from SEPA review. 

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Is an annexation of territory to a city subject to SEPA review?
Reviewed: 01/14

No. RCW 43.21C.222 provides that "annexation of territory by a city or town is exempted from compliance" with SEPA requirements.

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Can a municipal water right under a water right certificate be extinguished?
Reviewed: 01/14

Yes. Although the statutory provision for relinquishment of water rights does not apply to water rights relating to a municipal water supply (RCW 90.14.140(2)(d)), the common law doctrine of abandonment, under which a water right can be extinguished, does apply. Okanogan Wilderness League v. Town of Twisp, 133 Wn.2d 769, 781 (1997).

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What is a WRIA?
Reviewed: 01/14

A WRIA is a water resource inventory area. The State of Washington is divided into 62 geographic areas or WRIAs, defined on the basis of surface water resources and codified in WAC 173-500-040. WRIAs were originally established by the administrative code that implemented the Water Resources Act of 1971.

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Is local watershed planning required?
Reviewed: 01/14

No, local watershed planning is optional, not mandatory. However, if the local planning unit seeks state money to support its planning process, then the framework established in chapter 90.82 RCW must be followed.

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Who must be involved in watershed planning under ch. 90.82 RCW?
Reviewed: 01/14

Watershed planning may involve a single WRIA or multiple WRIAs. It may be initiated only with the agreement of all counties within the planning area, the largest city of town in each WRIA, and the largest water-supply utility in each WRIA. All Indian tribes with reservation lands within the WRIA must be invited to participate as initiating governments. To obtain state funds, the initiating governments must designate an entity to serve as the lead agency. State government and other affected tribal governments must be consulted in developing the planning process. Financial and technical assistance is provided through the Department of Ecology.  For more information, see the Department of Ecology's webpage on Watershed Management.

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What are the required elements of watershed planning under chapter 90.82 RCW?
Reviewed: 01/14

Local watershed plans must address water quantity and may address water quality, habitat, and setting or revising instream flows.

The planning units must complete water quantity assessments. The assessment includes the following:

  • An estimate of the total water resources present in the basin, the amount available, the quantity of existing rights (including claims and federally reserved rights), and the quantity of water actually used in the watershed,
  • An estimate of future needs,
  • Identification of areas where aquifers are recharged and where they discharge to surface water bodies,
  • An estimate of surface and groundwater available for future appropriation, taking into account minimum instream flows.

Also required are strategies for increasing water supplies in the planning area, such as conservation, reuse, voluntary water transfers, aquifer recharge and recovery, and additional water allocations or storage.

For more information, see the Department of Ecology's Watershed Management page.

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How does watershed planning relate to the Growth Management Act?
Reviewed: 01/14

Watershed planning under chapter 90.82 RCW provides an optional, locally driven, collaborative process to address issues related to water use. It is separate from but related to planning under the Growth Management Act (GMA). Watershed planning provides a structure for interjurisdictional collaboration to resolve conflicts about water.

Cities and counties will carry out many of the decisions that result from watershed planning efforts. Local comprehensive plans, capital facilities plans, and development regulations are keys to implementation of watershed planning efforts, whether or not a city or county is fully planning under the GMA. For the majority of the state, which is planning under GMA, the GMA provides the framework for this effort. In addition, the State Environmental Policy Act (SEPA) and the Shoreline Management Act (SMA) provide goals and steps that will assist in implementing watershed plans.

Growth Management staff at the Department of Commerce will work with local governments to integrate water and GMA planning efforts by providing technical assistance and collaborating with other state agencies and local and tribal governments on watershed planning activities.

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Who can provide technical assistance to watershed planning efforts?
Reviewed: 01/14

State agencies provide technical assistance to watershed planning efforts and should be represented on the planning units formed for the WRIA or multi-WRIA area. The Department of Ecology is responsible for overall coordination of the watershed planning program and is the logical place to start in obtaining technical assistance. A staff contact from the Department of Ecology's regional office is assigned to each watershed plan. See the Department of Ecology's Watershed Management page for further information.

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Are cities required to adopt the Department of Ecology's standards for wetland buffers?
Reviewed: 01/14

No. The Growth Management Act does not establish specific buffers or setbacks for wetlands and streams. The Department of Ecology has established standard buffer widths as statewide standards for Category I, II, III and IV wetlands (see Department of Commerce Critical Areas Assistance Handbook). These recommended buffer widths are used in conjunction with the state's original four-tiered rating system published in 1991. These buffer widths are based upon best available science to protect all wetlands found throughout the state. It is intended that local governments consider their specific natural resources and environmental setting to tailor these standard buffer widths to protect wetlands in their jurisdiction. Basically, this means that local governments are not required to follow the standard buffer widths established by Ecology. The actual buffers and setbacks adopted by Washington jurisdictions differ somewhat from the Ecology standards.

The Department of Ecology recommended buffer widths are listed in the Department of Commerce Critical Areas Assistance Handbook on pp. 62-63. These are recommended widths but are not mandated requirements. Ecology has developed a new rating systems for wetlands as part of the department's work on Best Available Science, Washington State Wetland Rating Systems.

You may also be interested in the Best Available Science (BAS) requirements of the GMA outlined in RCW 36.70A.172. The requirements for BAS are included in WAC 365-195-900 - 365-195-925 (See Part Nine - Best Available Science). This regulation describes what constitutes best available science and how local governments should identify, evaluate and include it in their critical-areas policies and regulations. BAS can be described as research conducted by qualified individuals using documented methodologies, the information reviewed by qualified scientific experts, and the criticisms addressed by the proponents.

The determination of "best available science" is the local jurisdiction's responsibility as part of the development of its critical areas policies and regulations. See the following excerpt from WAC 365-195-905:

(3) The responsibility for including the best available science in the development and implementation of critical areas policies or regulations rests with the legislative authority of the county or city. However, when feasible, counties and cities should consult with a qualified scientific expert or team of qualified scientific experts to identify scientific information, determine the best available science, and assess its applicability to the relevant critical areas. The scientific expert or experts may rely on their professional judgment based on experience and training, but they should use the criteria set out in WAC 365-195-900 through 365-195-925 and any technical guidance provided by the department. Use of these criteria also should guide counties and cities that lack the assistance of a qualified expert or experts, but these criteria are not intended to be a substitute for an assessment and recommendation by a qualified scientific expert or team of experts.

The following are Web links to information on wetland buffers:

Local Government Web pages on Wetlands

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Who has responsibility to deal with a citizen who wants to dig a well for private use?
Reviewed: 01/14

Wells and water rights are regulated by the Washington State Department of Ecology (DOE). RCW 90.44.050 generally requires a DOE permit for withdrawal of public groundwaters unless an exemption applies. For example, there are exemptions for water use not exceeding 5,000 gallons per day. The exemption might apply in this circumstance; if not, DOE would have the regulatory responsibility to deal with this.

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Is smoking allowed in a city/county building?
Reviewed: 01/14

No. The governing law here is Ch. 70.160 RCW- Smoking in Public Places. The basic rule of that law is set out in RCW 70.160.030, which provides that "No person may smoke in a public place or any place of employment." A "public place" is defined by RCW 70.160.020 to mean "that portion of any building or vehicle used by and open to the public, regardless of whether the building or vehicle is owned in whole or in part by private persons or entities, the state of Washington, or other public entity, and regardless of whether a fee is charged for admission, and includes a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of twenty-five feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited." "Place of employment" means any area under the control of a public or private employer which employees are required to pass through during the course of employment, including, but not limited to: Entrances and exits to the places of employment, and including a presumptively reasonable minimum distance, as set forth in RCW 70.160.075, of twenty-five feet from entrances, exits, windows that open, and ventilation intakes that serve an enclosed area where smoking is prohibited; work areas; restrooms; conference and classrooms; break rooms and cafeterias; and other common areas.

The smoking ban applies to all office work environments.

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What is a marine protected area?
Reviewed: 01/14

A marine protected area (MPA), as adopted by the Washington Fish and Wildlife Commission, is an environmental management tool used to protect marine life (see WAC 220-20-100). A marine protected area is a refuge for marine life where certain plants and animals are not harvested, and human activities that can disturb or damage marine life are restricted. A report on marine protected areas in Puget Sound identified a total of 102 Puget Sound intertidal and subtidal protected areas as existing MPAs, including state and local parks, such as Edmonds' Underwater Park and Tacoma's Titlow Beach Park. As of 2013, there were seven "no-take" MPAs in Washington where extraction of marine life is prohibited. There is some question about whether local control of harvest management in MPAs is pre-empted by the state and tribes. At the Edmonds Underwater Park, in addition to the city, the state Department of Natural Resources and the Washington Department of Fish and Wildlife are involved in the closure of the area to harvesting.

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Must a property owner apply for a shoreline substantial development permit for development on property that includes the shoreline area but that will not have any part of the development in the shoreline area as that is defined in the Shoreline Management Act (200 feet from the ordinary high water mark)?
Reviewed: 01/14

No. The fact that substantial development is proposed on property that includes a shoreline area does not trigger the permit requirement unless that development takes place, in whole or in part, in the shoreline area, which is defined to include the area extending to 200 feet from the ordinary high water mark. See RCW 90.58.030(2)(f).

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Does the Shoreline Management Act protect the views of upland residents from being obscured by shoreline development?
Reviewed: 01/14

Yes, to some extent. RCW 90.58.320 provides as follows:

No permit shall be issued pursuant to this chapter for any new or expanded building or structure of more than thirty-five feet above average grade level on shorelines of the state that will obstruct the view of a substantial number of residences on areas adjoining such shorelines except where a master program does not prohibit the same and then only when overriding considerations of the public interest will be served.

Thus, a local shoreline master program could allow buildings in the shoreline area to exceed 35 feet, subject to the subjective statutory limitation that "overriding considerations of the public interest will be served."

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Must the shoreline master program of a city that plans under the Growth Management Act be an element of the city's comprehensive plan?
Reviewed: 01/14

Yes, under regulatory reform legislation adopted in 1995. RCW 36.70A.480(1) states in part that the goals and policies of a shoreline master program of a city or county "shall be considered an element of the county or city's comprehensive plan" adopted under the Growth Management Act. In addition, all other portions of the shoreline master program, including use regulations, are to be considered as part of a city or county's development regulations, for Growth Management Act purposes.

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May a city allow a developer to initiate construction on a project when an EIS is currently being prepared?
Reviewed: 01/14

No, although the developer, under WAC 197-11-070(4), may do certain preliminary activities that are not inconsistent with WAC 197-11-070(1), which states as follows:

Until the responsible official issues a final determination of nonsignificance or final environmental impact statement, no action concerning the proposal shall be taken by a governmental agency that would:(a) Have an adverse environmental impact; or (b) Limit the choice of reasonable alternatives.

Since the purpose of an EIS is to identify and discuss significant impacts and reasonable alternatives to a project, including mitigation measures, it would be unlikely that the city could allow any construction before that information is presented to the city in the form of a final EIS (and the project is approved). This conclusion is consistent with the general policy of SEPA to insure the full disclosure of environmental information so that environmental matters can be given proper consideration during decision making. Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wn.2d 267, 273 (1976).

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May a city require mitigation under its SEPA authority that would impose requirements beyond what the city's zoning code imposes?
Reviewed: 01/14

Probably, given that case law makes it clear that SEPA acts as an "overlay" to local ordinances and can be applied to deny a project that otherwise complies with zoning regulations. For example, the court of appeals explained in West Main Assocs. v. Bellevue, 49 Wn. App. 513, 525 (1987):

SEPA standards or policies are not "elevated" above specific zoning ordinances, but rather they provide general guidance for determining whether the environmental impacts of an otherwise acceptable project require the denial of, or the imposition of conditions on, the project. In this regard, our courts have repeatedly stated that SEPA is not a substitute for local zoning ordinances, but

overlays local ordinances and must be enforced even where a particular use is allowed by local law or policy.  Cook v. Clallam Cy., 27 Wn. App. 410, 415, 618 P.2d 1030 (1980), review denied, 96 Wn.2d 1008 (1981);

West Main Assocs. v. Bellevue, 106 Wn.2d 47, 53, 720 P.2d 782 (1986); Polygon, at 65; RCW 43.21C.060. Nevertheless, project denial or the imposition of conditions should be based on policies identified by the city and incorporated into its zoning regulations and/or comprehensive plan and formally designated by the city as possible bases for the exercise of its SEPA authority. Victoria Partnership v. Seattle, 59 Wn. App. 592, 597 (1990).

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Is a short plat located partially within the flood plain subject to SEPA?
Reviewed: 01/14

A short plat is categorically exempt from SEPA review under WAC 197-11-800(6)(a), unless the city's SEPA procedures have designated the flood plain area as an environmentally sensitive area and have selected the applicable categorical exemption (for short plats under WAC 197-11-800(6)(a)) as not being applicable within designated environmentally sensitive areas. See WAC 197-11-908.

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