WSR 97-23-028

OFFICE OF THE GOVERNOR

[Filed November 14, 1997, 10:47 a.m.]

November 13, 1997

Mr. Randy Boss

3400 56th Street N.W., Suite 102

Gig Harbor, Washington 98335

Re: RCW 34.05.330(3) Appeal of Department of Transportation Administrative Ruling

Dear Mr. Boss:

The Department of Transportation's ("DOT") denial of your petition to amend WAC 468.105.020(11) is affirmed for the reasons discussed below. Your petition requested that WAC 468-105-020(11), which reads as follows:

(11) "Preferred alternative" means a proposed action identified in the draft environmental impact statement developed in chapter 43.21C RCW.

be revised to read as follows:

(11) "Preferred alternative" means the one best proposal selected above all other options evaluated and specifically identified in the final environmental impact statement developed in chapter 43.21C RCW.

Your appeal to this office seeks answers to several questions in addition to consideration of the agency's denial of your petition. I will attempt to answer those questions fully, as well as address your appeal.

The crux of your argument to the DOT appears to be that that WAC 468-105-020(11) should be amended to affirmatively define "preferred alternative" as a single option that has been evaluated in a final environmental impact statement ("EIS") because you believe that is the only logical conclusion that can be drawn from the totality of statutes and regulations that bear on the issue.

Your arguments on appeal address the lack of specificity in, and the form of, the DOT's denial of your petition, as well as reassertion of your original argument. Aside from your legal arguments, you contend that it makes no sense to have a public vote on a preferred alternative that, being based on a draft EIS rather than a final EIS, might turn out not to be the final, best alternative.

Your point is well taken, however one must also consider the practicality of completing a final EIS before the results of an advisory vote are known. Environmental review is a process specifically designed to obtain public input. The purpose of the EIS process is to enable government agencies and interested citizens to review and comment on proposed government actions, including government approval of private projects and their environmental effects. This process is intended to assist the agencies and applicants to improve their plans and decisions, and to encourage the resolution of potential concerns or problems prior to issuing a final statement. The EIS is to be used by agency officials in conjunction with other relevant materials and considerations to plan actions and make decisions. (WAC 197-11-400(4))

The advisory vote will be relevant material also considered by the agency director. WAC 197-11-055 (2)(c) states that consideration of environmental information should be completed before committing to a particular course of action. By definition the advisory vote does not commit an agency to a particular course of action. That occurs only when the Secretary of the DOT (the "Secretary") makes a final decision.

I disagree with your statement that WAC 197-11-070(1) specifically prohibits the selection of a preferred alternative until after the issuance of the final EIS. WAC 197-11-070 states that the Secretary cannot take action that would have an "adverse environmental impact" or "limit the choice of reasonable alternatives" until a final EIS (or a final determination of nonsignificance) has been issued. Selection of a preferred alternative and subjecting that alternative to an advisory vote has neither an adverse environmental impact nor limits the choice of reasonable alternatives. An adverse environmental impact does not occur until ground is broken, and selecting a preferred alternative for an advisory vote does not limit the choice of reasonable alternatives.

The DOT's position is that selecting a preferred alternative for an advisory vote is a reasonable and expeditious way to receive public input. Through the environmental review process and other research leading up to the draft EIS, the DOT narrows the alternatives to what appears to be the most reasonable one. In doing so, the DOT allows the public to then focus its energy and comments on that alternative. While it may be possible that the final EIS could reveal issues that might necessitate a second advisory vote, that risk does not render the DOT's approach per se unreasonable. In fact, in view of the totality of the circumstances and given the time and cost of preparing a final EIS, the DOT's approach seems quite reasonable in this case.

As a basis for your petition to amend WAC 468-105-020(11), you contend that that regulation conflicts with WAC 197-11-060(1), WAC 197-11-060 (3)(a)(iii), WAC 197-11-406 and WAC 197-11-055 (2)(c). I will address each of those regulations in turn.

1. WAC 197-11-060(1) is a very general statement of policy introducing the purpose of that regulation, and states that environmental review consists of a range of proposed activities, alternatives and impacts to be analyzed in an environmental document. It does not conflict with WAC 468-105-020(11), which defines "preferred alternative". As the environmental review process evolves, the practicality and impact of various alternatives are brought to light, and the alternatives can be narrowed. That is one purpose of environmental review.

2. WAC 197-11-060 (3)(a)(iii) states that "proposals" should be described in ways that encourage considering and comparing alternatives. That is not inherently inconsistent with WAC 468-105-020(11). You contend that since WAC 197-11-784 states that "proposal" means a proposed action and, since WAC 468-105-020(11) defines a "preferred alternative" as a proposed action identified in the draft environmental impact statement, therefore a "proposal" and a "preferred alternative" must be the same thing, or else the regulations are inconsistent.

I cannot agree with your logic. The two regulations you are comparing are in separate chapters, developed by different agencies pursuant to different statutes. The coincidence that both definitions use some of the same words does not necessarily mean that the two terms are the same. The fact that a proposal means a proposed action does not necessarily imply that all proposed actions are preferred alternatives. Looking at the totality of the regulations and their intent, I cannot give any weight to your argument. The regulations clearly state that a proposal is one of several alternatives and, when narrowed, one of the proposals may become a preferred course of action. That preferred course of action might ultimately become a "preferred alternative" as defined in WAC 468-105-020(11) for purposes of an advisory vote.

RCW 47.46.030(4) states that "[t]he advisory vote shall be on the preferred alternative identified under the requirements of chapter 43.21C RCW and, if applicable, the national environmental policy act, 42.U.S.C. 4321 et seq." The statute does not specify whether the preferred alternative should be identified in the draft or final EIS. To resolve that question, "preferred alternative" was specifically defined in WAC 468-105-020(11) as "a proposed action identified in the draft environmental impact statement developed in chapter 43.21C RCW. That rule was properly adopted and has a clear logical basis as discussed above.

Further, WAC 197-11-060 (3)(a)(iii) is advisory in nature, not mandatory. Therefore it cannot be in direct conflict with another regulation.

3. WAC 197-11-406 deals with EIS timing and is a statement of a basic SEPA principle that is set out in the statute and case law. It requires that the EIS "shall be prepared early enough so it can serve practically as an important contribution to the decisionmaking [sic.] process and will not be used to rationalize or justify decisions already made." Basing a preferred alternative on a draft EIS is not contrary to that principle. The decision making process occurs after the advisory vote when the Secretary decides which alternative will be acted upon. A final EIS can be completed at a practical and appropriate time between the advisory vote and the Secretary's decision. WAC 197-11-406 does not conflict with WAC 468-105-020(11).

4. WAC 197-11-055 (2)(c) states that "appropriate consideration of environmental information should be completed before an agency commits to a particular course of action (WAC 197-11-070)." This is generally interpreted to mean that work on a project cannot proceed prior to having completed a final EIS. "Commitment to a particular course of action" is the final decision to build a project, not to hold an advisory vote. The advisory vote is not something that can have a significant adverse impact on the quality of the environment, and is not a "major action" as defined in SEPA. A "major action" must be a final agency action that authorizes the project to proceed, and not some intermediate step. Juanita Bay Valley Community Ass'n v. Kirkland, 9 Wn.App. 59, 72, 510 P.2d 1140 (1973).

Please be assured that the advisory vote does not trigger an automatic award of a franchise agreement to a contractor to begin construction. The Secretary must make a final decision before any such irreversible steps are taken.

There is no basis for amending WAC 468-105-020(11) so that a "preferred alternative" be identified in a final EIS rather than a draft EIS.

I understand how you might be frustrated by the perceived lack of concern in the brevity of the DOT's response to your petition. Please understand that the agency's intent was not to give your petition short-shrift, but to be efficient and avoid duplication of effort by incorporating the Attorney General's memorandum by reference. I hope that this response adequately addresses your concerns in addition to your appeal of the denial of your petition. Thank you for the time and effort you have put into shaping this project and providing valuable public input.

Sincerely,

Gary Locke

Governor

Reviser's note: The typographical errors in the above material occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.