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SEPA Rule Changes Take Effect on May 2014!


May 7, 2014 by Bob Meinig
Category: Environmental Policy

The Department of Ecology (DOE) has finalized new State Environmental Policy Act (SEPA) rules that update existing rules, and these new rules take effect on May 10. The 2012 Legislature tasked DOE with the responsibility of amending the SEPA rules in chapter 197-11 WAC to implement the parts of SEPA legislation enacted during the 2012 session that address issues such as increasing categorical exemptions for certain minor construction projects and flexibility in the SEPA checklist. See my blog post from July 2012,"Changes to SEPA Effective on 7/10."

The new DOE rules are the second of two rounds of rule changes to implement the 2012 legislation. For information on the first round, see my February 2013 blog post, "New SEPA Regulations Implement 2012 Legislation." Most notably, the first round of SEPA rule changes increased the flexible thresholds that local governments may adopt to exempt minor new construction projects from SEPA review. This new round of rule changes does not further amend those flexible thresholds. The new rules, as summarized in DOE's Concise Explanatory Statement, include the following:

  • Expanded use of NEPA documentation by lead agencies.
  • Update of definition for “lands covered by water.”
  • For adoption of increased flexible thresholds for minor new construction, more specific requirements regarding cultural resources and an increase in notice to 60 days.
  • Expanded minor new construction exemptions for installation or removal of tanks and solar energy projects.
  • New exemption for small maintenance dredging projects.
  • Update of exemption for land use decisions to provide that most land use decisions will be exempt for otherwise exempt projects, with some limited exceptions.
  • New exemption for formation of special districts.
  • New exemption for text amendments of ordinances or codes that do not change environmental standards.
  • Update of utility exemption for water pipe size to align with industry standards.
  • Allow Department of Natural Resource (DNR) rock sales on state owned land.
  • Clarified and expanded Washington State Department of Transportation (WSDOT) maintenance exemptions.
  • Environmental checklist updates.
  • Other minor updates, clarifications and technical corrections.

For local governments, I want to draw particular attention to the following (links are to the amended rule text):

  • Updating the definition of "lands covered by water" (WAC 197-11-756) regarding wetlands makes it more consistent with the GMA. The amended definition clarifies that artificially-created wetlands intentionally created from non-wetland areas created to mitigate the conversion of wetlands are not considered "lands covered by water" for purposes of SEPA review. Additionally, the amended definition clarifies that buffers and adjacent lands above the ordinary high water mark are not "lands covered by water."
  • A city or county fully planning under the GMA will have to document, when adopting flexible thresholds under WAC 197-11-800(1)(c), its consideration of historic and cultural resources.
  • As to the categorical exemption for "land use decisions" in WAC 197-11-800(6) (no longer termed "minor land use decisions"), the amended rule:
    • identifies when rezones required for exempt projects are exempt;
    • clarifies that the exemption for short subdivisions relates to the number of lots allowed by a city or county as a short subdivision, i.e., up to nine lots; and
    • clarifies that a boundary line adjustment is categorically exempt.
  • The categorical exemption for the siting of wireless service facilities in WAC 197-11-800(25) is clarified and made more specific.
  • Agencies must use and submit to DOE the revised environmental checklist beginning May 10; and
  • The Model SEPA Ordinance in chapter 173-806 WAC has been repealed, but DOE will make it available as "guidance" rather than as a rule.

In an article appearing in The Washington Planner (APA, Washington Chapter, May 2014) titled "Time to update your local SEPA ordinance?," Neil Aaland, the facilitator of the SEPA Advisory Committee, recommends the following with respect to streamlining the SEPA process under the SEPA rules:

[I]n order to take advantage of most of the streamlining, you must revise and update your local SEPA ordinances. The SEPA Rules now require certain types of findings in your ordinance, and you must be able to demonstrate that your development regulations provide adequate protection of the natural and built environment before increasing the threshold levels.

The findings requirements are particularly important as they relate to cultural and historic resources. Many interested parties, including some tribes, use the SEPA process as a way of getting notice about projects with the potential to cause impacts to these resources. If raising the optional threshold levels, jurisdictions must document how their local ordinances and regulations provide adequate protection and notice. WAC 197-11-800(1)(c)(iv) discusses this process of documenting and the minimum requirements.

For further information, here is a link to DOE's webpage on State Environmental Policy Act Rulemaking 2013-14.

About Bob Meinig

Bob has written extensively on the state Open Public Meetings Act and on municipal incorporation and annexation. At MRSC, he has also advised local governments for over 25 years on diverse legal issues.

VIEW ALL POSTS BY Bob Meinig

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