SEPA/NEPA Compliance for Major Projects January 26, 2006 Law Seminars International Eric Laschever Stoel Rives LLP (206)

1. SEPA/NEPA Compliance for Major Projects January 26, 2006 Law Seminars International Eric Laschever Stoel Rives LLP (206) 386-7600

2. Overview • Phased Review • Regulatory Reform • Joint NEPA/SEPA Review

3. Phased ReviewWAC 197-11-060(5) • appropriate review to coincide with meaningful points in planning and decision-making processes. • helps focus on issues ready for decision and exclude issues already decided or not yet ready.

4. SEPA Phased Review • appropriate when sequence is from: • nonproject document to a document of narrower scope • from environmental document on specific proposal at an early stage to a subsequent environmental document at a later stage

5. SEPA Phased Review • not appropriate when • sequence is from narrow project document to broad policy document; • it would divide larger system into exempted fragments or avoid discussing cumulative impacts; or • it would segment and avoid present consideration of proposals and their impacts that are required to be evaluated in a single environmental document under WAC 197-11-060 (3)(b) or 197-11-305(1)

6. NEPA TieringSec. 1508.28 • appropriate to help lead agency focus on issues ripe for decision and exclude from consideration issues already decided or not yet ripe. • appropriate when the sequence of statements or analyses is from: • program, plan, or policy environmental impact statement to program, plan, or policy statement or analysis of lesser scope or to a site- specific statement or analysis. • environmental impact statement on a specific action at an early stage to a supplement or a subsequent statement or analysis at a later stage

7. Regulatory Reform • 1990-1995- The End of SEPA • 43.21C.240 • Planned Actions

8. RCW 43.21C.240GMA Project Review • local government determines requirements under local, state, and federal laws and rules provide adequate analysis of and mitigation for project action • DNS or MDNS is proper threshold determination.

9. RCW 43.21C.240(cont.) • Local government makes determination if it: • considers the specific probable adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements • and bases or conditions approval on compliance with requirements or measures.

10. WAC 197-11-164 Planned Action: Definition and criteria. • GMA counties/cities may designate • Environmental impacts adequately addressed in an EIS prepared for: • GMA comprehensive plan or subarea plan; • Fully contained community, a master planned resort, a master planned development, or a phased project

11. WAC 197-11-164 (cont.) Planned Action: Definition and criteria • subsequent or implementing projects • in an urban growth area or a master planned resort; • not essential public facilities; and • consistent with comprehensive plan

12. WAC 197-11-172Project review • Planned action project review verifies: • project meets the description in ordinance/resolution • will implement conditions or mitigation measures identified in ordinance/ resolution; and • Planned Action EIS adequately addressedproject’s probable significant adverse environmental impacts

13. WAC 197-11-172 Project Review (cont.) • project threshold determination or EIS is not required. • local government may place conditions on the project to mitigate nonsignificant impacts through the normal local project review and permitting process. • public notice for planned action projects tied to the underlying permit.

14. Appeals • Limited • No reported cases

15. Recent Examples (2004-5) • Lynwood City Center North • Monroe Kelsoe Subarea Plan • University Place Town Center • City of Auburn- private project • City of Covington- Town Center Plan

16. Joint NEPA/SEPA Review • Complex infrastructure projects • NEPA and SEPA encourage coordination • NEPA and SEPA discourage duplication • Different level of experiences and comfort with joint documents

17. Joint Review: RCW 43.21C.150 • “The requirements . . . pertaining to the preparation of a detailed statement . . . shall not apply when an adequate detailed statement has been previously prepared pursuant to [NEPA]” • “Said prepared statement may be utilized in lieu of a separately prepared statement under RCW 43.21C.030(2)(c).”

18. Joint Review: Boss v. WSDOT113 Wn. App. 543 • Appeal of EIS for Tacoma Narrows Bridge • Joint NEPA/SEPA EIS • Boss argued that exemption applied only if the NEPA document was a separate existing document • Division II concluded “previously prepared” means that the NEPA EIS must be prepared before the agency takes action.

19. Joint Review: Citizens for Safety v. WSDOT • Unpublished Division I Case (2005 WL 2651499) • Citizens sought to invalidate WSDOT permit to access White River Amphitheatre from state road • Citizens previously had lost federal district court appeal against Bureau of Indian Affairs • State superior court relied on Boss • Division I decided case using doctrine of collateral estoppel