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SEPA and NEPA Compliance for Major Projects

SEPA and NEPA Compliance for Major Projects. Law Seminars International Conference – January 25, 2006 Lloyd Skinner, AICP Adolfson Associates, Inc. 5309 Shilshole Avenue NW Seattle, WA 98107. TOPICS TO BE COVERED. Phased Review Appropriate Level of Detail “Worst Case” Analysis.

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SEPA and NEPA Compliance for Major Projects

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  1. SEPA and NEPA Compliance for Major Projects Law Seminars International Conference – January 25, 2006 Lloyd Skinner, AICP Adolfson Associates, Inc. 5309 Shilshole Avenue NW Seattle, WA 98107

  2. TOPICS TO BE COVERED • Phased Review • Appropriate Level of Detail • “Worst Case” Analysis

  3. Phased Review • NEPA Guidance • Tiering (40 CFR 1502.20) • Supplementing NEPA Documents (40 CFR 1502.9) • Tests/Restrictions on segmentation • “independent utility” • “logical termini”

  4. Phased Review – SEPA Guidance (WAC 197-11-060) “Environmental review may be phased.” If used, it is intended to assist agencies and the public “to focus on issues that are ready for decision and exclude from consideration issues already decided or not yet ready… “Broader environmental documents may be followed by narrower documents.” Examples include those that may “incorporate prior general discussion by reference and concentrate solely on issues specific to that phase of the proposal.”

  5. Phased Review – SEPA Guidance (WAC 197-11-060) “… appropriate when the sequence is from a non-project document to a document of narrower scope, … or from a document on a specific proposal at an early stage to a subsequent document at a later stage…” Not appropriate when “it merely divides a larger project into exempted fragments…” or when it serves to “segment or avoid present consideration of a proposal and its impacts required to be evaluated in a single environmental document.”

  6. Appropriate Level of Detail • NEPA Guidance • 23 CFR 771.111: ID the Class of Action (CE, EA, or EIS) as soon as sufficient info is available to identify probable impacts (e.g. – no later than review of TIP) • 40 CFR 1501.2: Integrate NEPA “at the earliest possible time”; in “adequate detail” to compare to economic and technical analyses; circulate and review “at the same time as other planning documents.”

  7. Appropriate Level of Detail – SEPA Guidance • WAC 197-11-055: • “The SEPA process shall be integrated with agency processes at the earliest possible time to assure that planning and decisions reflect environmental values…” • “The lead agency shall prepare its threshold determination and EIS, if required, at the earliest possible point in the planning and decision making process when the principal features of a proposal and its environmental impacts can be reasonably identified.”

  8. Challenges in Finding Appropriate Level of Detail • Level of Design Development • Early: often too general for decision makers and public • Late: permit-level review stage • Somewhere in between: project-level NEPA and SEPA documentation • The “30%” Design rule

  9. Project Examples Brightwater Regional Wastewater Treatment System Buckhorn Mountain Gold Mine

  10. King County Regional Wastewater System

  11. Brightwater Regional Wastewater Treatment System • Decision process was phased • Regional Wastewater Services Plan: assessed system capacity, future needs • Accompanied by RWSP EIS for system selection • Preferred system was new north end treatment

  12. Brightwater Regional Wastewater Treatment System • Supplemental EIS Options • Site selection EIS followed by project EIS • Proceed directly to project-level EIS • Considerations • Public process to narrow site selection – vs. – internal technical exercise • Schedule • Cost

  13. Brightwater Level of Detail Project-level EIS was the selected approach 2 Site Alternatives addressed in EIS Predesign detail prepared for both alternatives to demonstrate reasonable and feasible nature of each

  14. Brightwater Level of Detail 16 Volume EIS Adequacy Appeal addressed many issues • Alternatives • Site issues • Water quality • Traffic, land use, etc.

  15. Brightwater Worst Case Analysis • Hearing Examiner Decision • EIS was adequate, but • Site trenching required to address seismic uncertainties • EIS relied on generally accepted engineering design principles • Hearing Examiner concluded after testimony that trenching is a reasonable and widely-enough used method

  16. Brightwater Worst Case Analysis Supplemental EIS prepared to address seismic issues • Discussed trenching results • Addressed pipes into the site, water quality impacts of major seismic event on Little Bear Creek (low flow vs. 100-yr storm compared), failure of tanks on the site • Supplemental EIS also appealed • More detail requested on economic impacts, on mitigation of potential impacts to creek, residents, businesses, domestic animals, and wildlife

  17. Worst-Case Analysis – NEPA Guidance 40 CFR 1502.22 • Served as a model for SEPA WAC 197-11-080 • Had said: “If the agency proceeds, it shall include a worst-case analysis and an indication of the probability or improbability of its occurrence.” • CEQ removed worst case analysis language in 1986

  18. Worst Case Analysis – SEPA Guidance WAC 197-11-080 “If the agency proceeds, it shall generally indicate in the appropriate environmental documents its worst-case analysis and the likelihood of occurrence, to the extent this information can reasonably be developed.”

  19. Worst Case Analysis – SEPA Guidance 1983 WA State Commission on Environmental Policy Final Report (“Ten Years’ Experience with SEPA”) “The requirement for a worst case analysis means that a description is given of how bad things could reasonably be, recognizing that…this description will depend on the extent the information can reasonably be developed. [It] is intended to be a reasonably probable worst case, and not an analysis based on an extreme application of Murphy’s Law…”

  20. Worst Case Analysis – SEPA Guidance 1983 WA State Commission on Environmental Policy Final Report (“Ten Years’ Experience with SEPA”) “… Neither this section nor any other in these rules is intended to require as a matter of law a strict numerical probability analysis or a formal risk analysis. The appropriate methodology is intended to be governed by the rule of reason … Environmental documents are not intended to [be] models of dissertations in predictive physical science, …

  21. Worst Case Analysis – SEPA Guidance 1983 WA State Commission on Environmental Policy Final Report (“Ten Years’ Experience with SEPA”) “… but rather an effective way to help public officials and citizens understand the significance of impacts, built upon relevant interdisciplinary analysis.”

  22. Buckhorn Mountain Gold Mine Phased Review and Level of Detail also at issue • Crown Jewel NEPA EIS and ROD previously • Changed circumstances – new proposal • Underground, not open pit • SEPA, not NEPA, following private purchase of the site (under federal Mining Claims Act) • WDOE prepared Supplemental EIS

  23. Buckhorn Mountain Gold Mine – Phased Review • SEPA SEIS supplementing a NEPA EIS • Current proposal was an alternative in previous EIS • “Supplemental” because same ore, same location, same purpose and need • Generally all new analysis, however

  24. Buckhorn Mountain Gold Mine Level of Detail • Design of mitigation is at issue • No mitigation plan filed yet • Water quality treatment of contaminants • Treatment is reasonably available and effective at achieving water quality standards, or • “Vague, speculative, wishful thinking”

  25. Buckhorn Mountain Final EIS expected in April ’06 Additional detail in response to public comment is anticipated

  26. SEPA and NEPA Compliance for Major Projects Law Seminars International Conference – January 25, 2006 Lloyd Skinner, AICP Adolfson Associates, Inc. 5309 Shilshole Avenue NW Seattle, WA 98107

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