Background:

State Environmental Policy Act.

The State Environmental Policy Act (SEPA) requires state agencies and local governments to prepare an environmental impact statement (EIS) if proposed legislation or other major action may have a probable significant adverse impact on the environment. If it appears a probable significant adverse environmental impact may result, the proposal may be altered or its probable significant adverse impact mitigated. If this cannot be accomplished, an EIS is prepared. The responsible agency official has authority to make the threshold determination whether an EIS must be prepared.

Except for development projects that are exempt from the SEPA requirements, the SEPA generally requires a project applicant to submit an environmental checklist. The environmental checklist includes questions about the potential impacts of the project on the built environment and the natural environment, as well as questions about historic and cultural preservation. In particular, the project applicant must provide information about:

any places or objects listed on, or proposed for national, state, or local preservation registers known to be on or next to the site;
any landmarks or evidence of historic, archaeological, scientific, or cultural importance known to be on or next to the site; and
any proposed measures to reduce or control impacts.

The checklist is reviewed by the SEPA lead agency (one of the agencies with permitting authority for the project) to determine whether the project is likely to have a significant adverse environmental impact. The lead agency also will review the checklist to determine if the applicant has identified mitigation sufficient to reduce environmental impacts.

After the checklist is reviewed, the lead agency issues its threshold determination. If a lead agency determines that a project is not likely to have a significant adverse environmental impact — or if mitigation sufficient to reduce these impacts has been identified — the lead agency issues a determination of nonsignificance (DNS) or a mitigated DNS (MDNS), which includes mitigation conditions for the project. Alternatively, a lead agency issues a determination of significance (DS) if it determines that a project is likely to have a significant adverse environmental impact or mitigation cannot be identified to reduce these impacts. The DS triggers the requirement to prepare an EIS. The EIS is scoped to address only the matters determined to have a probable significant adverse environmental impact.

Categorical exemptions are identified in both statute and in rule. Project and nonproject actions determined to be categorically exempt are not subject to SEPA's environmental review or EIS requirements.

Recent Legislation and Rulemaking.

In 2012 legislation was enacted that identified new categorical exemptions in statute, and directed the Department of Ecology (DOE) to adopt others in rule.

Infill Exemption. A city or county planning under the Growth Management Act was authorized to establish a new categorical exemption from the SEPA for project action related to certain commercial developments up to 65,000 square feet, not including retail development. Among other requirements, the development must be proposed to fill in an urban growth area where current density and intensity of use is lower than called for in the comprehensive plan.

Nonproject Exemptions. Other new categorical exemptions from the SEPA for certain nonproject actions were established. These nonproject actions included amendments to development regulations required to ensure consistency with an adopted comprehensive plan or a shoreline master program, or to provide increased environmental protection. They also included amendments to technical codes adopted to ensure consistency with state law.

Rule-based Exemptions. By December 31, 2012, the DOE was required to increase the existing maximum threshold levels for specified categories of project actions, such as the construction or location of residential developments, the construction of certain agricultural structures and commercial buildings, and land filling or excavation activities. The DOE was also required to establish maximum exemption levels for action types that vary based on the location of the project, such as whether the project is proposed to occur in or out of an urban growth area. By December 31, 2013, the DOE is required to update, but not decrease, the maximum threshold levels for all other project actions. The DOE is also required to create categorical exemptions for minor code amendments that do not lessen environmental protection.

For both phases of rulemaking, the DOE is required to convene an advisory committee to assist in updating the thresholds. The advisory committee is also convened to ensure that state agencies, tribes, and other interested parties can receive notice about projects of interest through notice under the SEPA and means other than the SEPA. The advisory committee consists of members representing, at minimum, the following: state agencies and local governments; business interests; environmental interests; agricultural interests; cultural resources interests; and tribal governments.