State Environmental Policy Act (SEPA) Growth Management Act (GMA)

							State Environmental Policy
        Act (SEPA)
 Growth Management Act
          (GMA)
          Barbara Heavey
     King County Department of
   Development and Environmental
          Services (DDES)
           October 2006
SEPA Authority
   RCW 42.21C
   WAC 197-11
   KCC 20.44
SEPA History
   Enacted in 1971
   Similar to NEPA (1969)
   Companion to Shoreline Management
    Act (SMA)
   Major source of regulatory authority for
    local jurisdictions until GMA and critical
    areas regulations (1990-91)
   Regulatory Reform Act (1995)
SEPA Components
   Procedural
   Substantive
Procedural
   Must understand and consider the
    environmental consequences when
    making a decision that affects the
    environment
   Must follow the procedures set out in the
    regulations
Substantive
   May condition or deny a proposal based
    on the environmental consequences
   Polygon Corp. v. City of Seattle (1978)
    may condition or deny even though the
    project meets all express requirements
    of other statues and ordinances
   Limited by later amendments
SEPA Process
   When presented with an action
   that is not categorically exempt
   the lead agency must:
    • consult with other agencies
    • consider the impacts on the environment and
   make a threshold determination.
Action types
   Project actions
   Non-project actions
Project Action
Decision on a specific project, such as
  construction or management activity located in
  a defined geographic area
Specifically limited to agency decisions to:
 License, fund, or undertake any activity that
  will directly modify the environment
 Purchase, sell, lease, transfer or exchange
  natural resources, including publicly owned
  land, whether or not the environment is directly
  modified
  Non-project Action

Decision on policies, plans or programs
 Legislation and regulations that contain standards
  controlling use or modification of the environment
 Comprehensive land use plans & zoning
 Policy, plan or program that will govern the
  development of a series of connected actions
 Creation of a district or annexation to any city,
  town or district
 Capital budgets
 Road, street and highway plans
Project Action SEPA Review
   Less of a SEPA emphasis today for
    private project actions
   Regulatory Reform Act
   GMA/Critical Areas Ordinances
   Other regulations that address traditional
    SEPA impacts
Non-Project Action SEPA
Reviews
   Can still be a powerful tool for
    governments
   Used to narrow range of choices
   Provides a “scripted” public review
    process
Categorical Exemptions
   27 specific exemptions; may be limitations
   Local option to adopt “flexible thresholds” for
    minor new construction and critical areas
   If exempt, no checklist, threshold determination
    or any documentation required
   Not exempt if a series of actions that are
    physically or functionally related to each other
    and:
    •   Some are exempt and some are not; or
    •   Together may have a probable significant adverse
        environmental impact
Threshold Determination
   Determination of non-significance (DNS)
   Mitigated determination of non-
    significance (MDNS)
   Determination of significance (DS)
    requires an EIS
MDNS
   DNS that includes mitigation measures
   Early notice “DS likely”
   Mitigations must be based on policies, plans,
    rules, or regulations formally designated and in
    effect when the MDNS is issued
   Mitigations become a part of the proposal
   Notice and comment period
   May have an administrative appeal in some
    jurisdictions
EIS Process
   21 day “scoping” period for public and agency comment
   Prepared by or under the direction of lead agency
   May be agency imposed time limits
   Draft EIS issued with 30 to 45 day comment period; may
    be public meeting
   No appeal of DEIS
   Final EIS includes response to comments, additional
    analysis
   7 day waiting period before final decision
EIS Content
   Format and contents specified in WAC
   Elements of the environment specified; only
    address those that are relevant
   Reasonable alternatives must be considered,
    including “no action”
   Analyze only environmental impacts; not
    required to document all impacts
   Cost-benefit analysis is not required but may
    be included
EIS alternatives analysis
   Agencies use process to look at location
    alternatives or methods to accomplish
    the goal
   Private sector proposals are generally
    limited to alternatives on the project site
Other Environmental Documents
   Supplemental EIS
    •   Same process as DEIS and FEIS except scoping is
        optional
    •   May come before or after FEIS
   Addendum
    •   Provides additional information or analysis but does
        not substantially change the analysis of significant
        impacts and alternatives
    •   May have different notice requirements based on time
        in the process
   NEPA documents
    •   May require additional public hearings
Substantive Authority
   First established judicially
   May be conditioned or denied to mitigate
    the environmental impacts
Mitigation Measures
   Mitigation measures shall be:
    •   Based on policies, plans, rules, or regulations formally
        designated by the agency in effect when MDNS or
        DEIS is issued
    •   Related to specific adverse environmental impacts
        clearly identified in an environmental document on the
        proposal
    •   Reasonable and capable of being accomplished
    •   Attributable to the identified adverse impacts of the
        proposal (nexus)
   Must consider whether local, state or federal
    requirements or enforcement mitigate an
    impact
Denials
   To deny an agency must find:
    • Significant adverse environmental impact
        identified in a FEIS or SEIS
    •   Reasonable mitigation measures are
        insufficient
   An agency is not required to deny a
    project
Administrative Appeals
   Agencies may, but are not required to, establish administrative
    appeals
   Only one “open record” hearing and one “closed record” per
    permit decision
   Can not allow appeal of “intermediate” steps
   Decision of responsible official entitled to substantial weight
   Must use administrative appeal, if any, before judicial appeal
Judicial Appeals
   Largely governed by other statutes
   Must consolidate SEPA appeal with
    appeal of the underlying permit or
    decision
Growth Management Act (GMA):
History
   1985 King County Comprehensive Plan
   1989 Chelan Conference
   1990 First GMA
   1991 Countywide Planning Revisions
   1991 KC Sensitive Areas Ordinance
   1995 Regulatory Reform Act; Best Available
    Science for critical areas
   1997 Buildable Lands Inventory; periodic
    review
   2004 Critical area compliance “deadline”
GMA Goals
   Urban growth                     Open space & recreation
   Reduce sprawl                    Environment
   Transportation                   Citizen participation &
   Affordable housing                coordination
   Economic development             Public facilities & services
   Property rights                  Historic preservation
   Permits                          Shoreline Management*
   Natural resource industries
GMA Applicability
   Only fastest growing counties; others
    may opt in
   County and all cities within the county
    must plan
   Sanctions for non-compliance
   Special district planning requirements
    vetoed
GMA Structure
   Coordinated planning
    • “County-wide planning policies”
    • Ratification procedures for policies and
        amendments
    •   Consistent Comprehensive Plans
   Regulations consistent with plans
   Enforcement through Growth
    Management Hearing Boards
GMA Required Actions
   Adopt plan and implementing regulations
   Establish urban growth boundaries
   Designate and protect natural resource lands
   Designate and protect critical areas
   Infrastructure “concurrent” with growth
    • Transportation concurrency mandated
    • Level of service standards
    • King County school concurrency
Comprehensive Plans:
Mandatory Elements
   Land use
   Housing
   Capital facilities
   Utilities
   Rural
   Transportation
   Economic development
   Parks and recreation
Comprehensive Plans:
Urban Growth Area
   Designated by county with cities consultation
   All cities must be within
   Can not annex or incorporate non-urban areas
    •   Potential annexation areas designated
   Most growth concentrated within Urban area
   All other areas are rural or resource production
    areas
    •   Rural areas zoned residential
    •   Resource production areas include forest, agriculture,
        mineral
    •   Non-resource uses are limited
Critical Area Required Actions
   Designate
   Protect
   Include Best Available Science (BAS)
GMA Critical Areas
 Wetlands*
 Areas with critical recharging effect on
  aquifers used for potable water (CARA)
 Fish and wildlife habitat conservation
  areas
 Frequently flooded areas
 Geologically hazardous areas*
*defined by statute
Critical Areas Definitions
   RCW list is the minimum, local
    jurisdictions can do more
   Substantive changes to statutory
    definitions are not allowed
   Jurisdictions may adopt definitions for
    undefined terms as long as they
    “comply” with the statute
King County Critical Areas
   Coal mine hazard                Aquatic areas
   Erosion hazard                   •   Streams
   Flood hazard                     •   Lakes
    •   Floodplain                   •   Marine shoreline
    •   Zero-rise flood fringe      Critical aquifer recharge
    •   Zero-rise floodway          Wetlands
    •   FEMA floodway               Wildlife habitat
    •   Channel migration zone       conservation
   Landslide hazard                Wildlife habitat networks
   Seismic hazard
   Steep slope hazard
   Volcanic hazard
Critical Area Guidance

   Wn. Depart. Of Community Trade &
    Economic Development (CTED) required
    to adopt minimum guidelines
   Advisory, must be considered; give
    serious thought
Critical Areas Designation
   Mapping
    • Geohazards, flood hazard, CARA
   Criteria for identifying
    • Wetlands, stream classifications
   Some have both map and criteria
Critical Area Protection
   Protect development from hazard areas
    •   Adequately protect development
    •   Assure development does not result in harm to other
        properties
   Protect critical areas from development
    •   No net loss of value & functions of eco systems within
        a watershed or other functional catchment area
    •   No less protection for urban areas; but may vary
        buffers if no-net-loss standard met
Best Available Science (BAS)
 In designating and protecting critical
 areas…counties and cities shall include the
 best available science in developing policies
 and development regulations to protect the
 functions and values of critical areas. In
 addition, counties and cities shall give special
 consideration to conservation or protection
 measures necessary to preserve or enhance
 anadromous fisheries. (RCW 36.70A.172)
BAS: CTED Guidance
   WAC 365-195 sections 900-925
   Description of the standards for a “valid
    scientific process”
   Departures from “science-based”
    recommendations
   Guidance when there is inadequate scientific
    information
    •   Precautionary or no-risk approach
    •   Interim measures and adaptive management
BAS: Valid Scientific Process
   Findings critically reviewed by qualified scientific experts
    in the field
   Methods used are standard in the field or peer reviewed
   Conclusions are logical and inferences reasonable given
    the data and methods
   Data have been analyzed using standard or peer
    reviewed quantitative or statistical methods
   Data and findings are place in proper context
   Assumptions, analytical techniques and conclusions are
    well referenced to relevant, credible, scientific literature
BAS:
Growth Board Review Focus
   Is the scientific evidence in the record?
   Did the analysis by the local decision-
    maker of the scientific evidence and
    other factors involve a reasoned
    process?
   Was the decision within the parameters
    of the act? (RCW 36.70A.172(1))
BAS: Judicial Interpretations
   Not just a procedural requirement; BAS
    must be considered substantively
    Must be considered and balanced with
    other goals of the GMA
   May be possible to “depart” from BAS
    based on local circumstances; not clear
    yet what would be sufficient
BAS: King County Departures
   Urban/rural buffer differences for
    wetlands and aquatic areas
   Rural stewardship plans
   Agricultural plans via King Conservation
    District
   Forest plans