BILL REQ. #:  H-1413.1 

Read first time 02/02/09.   Referred to Committee on Environmental Health.

     AN ACT Relating to incorporating human health analysis into environmental review; amending RCW 43.21C.030, 43.21C.031, 43.21C.034, 43.21C.060, 43.21C.075, 43.21C.110, and 43.21C.240; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that the state environmental policy act, chapter 43.21C RCW, requires a thorough exploration and a careful analysis of a wide range of alternatives based on the best available science. Further, the legislature finds that any gaps in scientific data uncovered by the examination of alternatives will provide a guidepost for future research, but will not prevent protective action being taken by public agencies. The legislature also finds that as new scientific data become available, public agencies will review decisions and make adjustments when warranted. The legislature reaffirms that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. Therefore, the legislature declares that where threats of serious or irreversible damage to people or nature exist, lack of full scientific certainty about cause and effect may not be viewed as sufficient reason for the state to postpone measures to prevent the degradation of the environment or protect the health of its residents.

Sec. 2   RCW 43.21C.030 and 1971 ex.s. c 109 s 3 are each amended to read as follows:
     (1) The legislature authorizes and directs that, to the fullest extent possible: (((1))) (a) The policies, ((regulations)) rules, and laws of the state of Washington shall be interpreted and administered in accordance with the policies set forth in this chapter, and (((2))) (b) all branches of government of this state, including state agencies, municipal and public corporations, and counties shall:
     (((a))) (i) Utilize a systematic, interdisciplinary approach which will ((insure)) ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment;
     (((b))) (ii) Identify and develop methods and procedures, in consultation with the department of ecology and the ecological commission, which will ((insure)) ensure that presently unquantified environmental and human health amenities and values will be given appropriate consideration in decision making along with economic and technical considerations;
     (((c))) (iii) Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment and human health, a detailed statement by the responsible official on:
     (((i))) (A) The environmental and human health impact of the proposed action;
     (((ii))) (B) Any adverse environmental and human health effects which cannot be avoided should the proposal be implemented;
     (((iii))) (C) Alternatives to the proposed action;
     (((iv))) (D) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and
     (((v))) (E) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;
     (((d))) (iv) Prior to making any detailed statement, the responsible official shall consult with and obtain the comments of any public agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate federal, province, state, and local agencies, which are authorized to develop and enforce environmental and human health standards, shall be made available to the governor, the department of ecology, the department of health, the ecological commission, and the public, and shall accompany the proposal through the existing agency review processes;
     (((e))) (v) Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
     (((f))) (vi) Recognize the worldwide and long-range character of environmental and human health problems and, where consistent with state policy, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind's world environment;
     (((g))) (vii) Make available to the federal government, other states, provinces of Canada, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment and human health;
     (((h))) (viii) Initiate and utilize ecological information in the planning and development of natural resource-oriented projects.
     (2) For purposes of this chapter, "human health" includes the consideration of physical, mental, economic, and social well-being and not merely the absence of disease or infirmity.

Sec. 3   RCW 43.21C.031 and 1995 c 347 s 203 are each amended to read as follows:
     (1) An environmental impact statement (the detailed statement required by RCW 43.21C.030(((2)(c))) (1)(b)(iii)) shall be prepared on proposals for legislation and other major actions having a probable significant, adverse environmental and human health impact. The environmental impact statement may be combined with the recommendation or report on the proposal or issued as a separate document. The substantive decisions or recommendations shall be clearly identifiable in the combined document. Actions categorically exempt under RCW 43.21C.110(1)(a) do not require environmental review or the preparation of an environmental impact statement under this chapter. In a county, city, or town planning under RCW 36.70A.040, a planned action, as provided for in subsection (2) of this section, does not require a threshold determination or the preparation of an environmental impact statement under this chapter, but is subject to environmental review and mitigation as provided in this chapter.
     An environmental impact statement is required to analyze only those probable adverse environmental and human health impacts which are significant. Beneficial environmental and human health impacts may be discussed. The responsible official shall consult with agencies and the public to identify such impacts and limit the scope of an environmental impact statement. The subjects listed in RCW 43.21C.030(((2)(c))) (1)(b)(iii) need not be treated as separate sections of an environmental impact statement. Discussions of significant short-term and long-term environmental and human health impacts, significant irrevocable commitments of natural resources, significant alternatives including mitigation measures, and significant environmental and human health impacts which cannot be mitigated should be consolidated or included, as applicable, in those sections of an environmental impact statement where the responsible official decides they logically belong.
     (2)(a) For purposes of this section, a planned action means one or more types of project action that:
     (i) Are designated planned actions by an ordinance or resolution adopted by a county, city, or town planning under RCW 36.70A.040;
     (ii) Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with (A) a comprehensive plan or subarea plan adopted under chapter 36.70A RCW, or (B) a fully contained community, a master planned resort, a master planned development, or a phased project;
     (iii) Are subsequent or implementing projects for the proposals listed in (a)(ii) of this subsection;
     (iv) Are located within an urban growth area, as defined in RCW 36.70A.030;
     (v) Are not essential public facilities, as defined in RCW 36.70A.200; and
     (vi) Are consistent with a comprehensive plan adopted under chapter 36.70A RCW.
     (b) A county, city, or town shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the jurisdictional boundaries of the county, city, or town and may limit a planned action to a time period identified in the environmental impact statement or the ordinance or resolution adopted under this subsection.

Sec. 4   RCW 43.21C.034 and 1993 c 23 s 1 are each amended to read as follows:
     Lead agencies are authorized to use in whole or in part existing environmental documents for new project or nonproject actions, if the documents adequately address environmental and human health considerations set forth in RCW 43.21C.030. The prior proposal or action and the new proposal or action need not be identical, but must have similar elements that provide a basis for comparing their environmental and human health consequences such as timing, types of impacts, alternatives, or geography. The lead agency shall independently review the content of the existing documents and determine that the information and analysis to be used is relevant and adequate. If necessary, the lead agency may require additional documentation to ensure that all environmental and human health impacts have been adequately addressed.

Sec. 5   RCW 43.21C.060 and 1983 c 117 s 3 are each amended to read as follows:
     The policies and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties. Any governmental action may be conditioned or denied pursuant to this chapter: PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of authority pursuant to this chapter. Such designation shall occur at the time specified by RCW 43.21C.120. Such action may be conditioned only to mitigate specific adverse environmental and human health impacts which are identified in the environmental documents prepared under this chapter. These conditions shall be stated in writing by the decisionmaker. Mitigation measures shall be reasonable and capable of being accomplished. In order to deny a proposal under this chapter, an agency must find that: (1) The proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and (2) reasonable mitigation measures are insufficient to mitigate the identified impact. Except for permits and variances issued pursuant to chapter 90.58 RCW, when such a governmental action, not requiring a legislative decision, is conditioned or denied by a nonelected official of a local governmental agency, the decision shall be appealable to the legislative authority of the acting local governmental agency unless that legislative authority formally eliminates such appeals. Such appeals shall be in accordance with procedures established for such appeals by the legislative authority of the acting local governmental agency.

Sec. 6   RCW 43.21C.075 and 1997 c 429 s 49 are each amended to read as follows:
     (1) Because a major purpose of this chapter is to combine environmental and human health considerations with public decisions, any appeal brought under this chapter shall be linked to a specific governmental action. The state environmental policy act provides a basis for challenging whether governmental action is in compliance with the substantive and procedural provisions of this chapter. The state environmental policy act is not intended to create a cause of action unrelated to a specific governmental action.
     (2) Unless otherwise provided by this section:
     (a) Appeals under this chapter shall be of the governmental action together with its accompanying environmental determinations.
     (b) Appeals of environmental determinations made (or lacking) under this chapter shall be commenced within the time required to appeal the governmental action which is subject to environmental review.
     (3) If an agency has a procedure for appeals of agency environmental determinations made under this chapter, such procedure:
     (a) Shall allow no more than one agency appeal proceeding on each procedural determination (the adequacy of a determination of significance/nonsignificance or of a final environmental impact statement);
     (b) Shall consolidate an appeal of procedural issues and of substantive determinations made under this chapter (such as a decision to require particular mitigation measures or to deny a proposal) with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing before one hearing officer or body to consider the agency decision or recommendation on a proposal and any environmental determinations made under this chapter, with the exception of:
     (i) An appeal of a determination of significance;
     (ii) An appeal of a procedural determination made by an agency when the agency is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;
     (iii) An appeal of a procedural determination made by an agency on a nonproject action; or
     (iv) An appeal to the local legislative authority under RCW 43.21C.060 or other applicable state statutes;
     (c) Shall provide for the preparation of a record for use in any subsequent appeal proceedings, and shall provide for any subsequent appeal proceedings to be conducted on the record, consistent with other applicable law. An adequate record consists of findings and conclusions, testimony under oath, and taped or written transcript. An electronically recorded transcript will suffice for purposes of review under this subsection; and
     (d) Shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight.
     (4) If a person aggrieved by an agency action has the right to judicial appeal and if an agency has an administrative appeal procedure, such person shall, prior to seeking any judicial review, use such agency procedure if any such procedure is available, unless expressly provided otherwise by state statute.
     (5) Some statutes and ordinances contain time periods for challenging governmental actions which are subject to review under this chapter, such as various local land use approvals (the "underlying governmental action"). RCW 43.21C.080 establishes an optional "notice of action" procedure which, if used, imposes a time period for appealing decisions under this chapter. This subsection does not modify any such time periods. In this subsection, the term "appeal" refers to a judicial appeal only.
     (a) If there is a time period for appealing the underlying governmental action, appeals under this chapter shall be commenced within such time period. The agency shall give official notice stating the date and place for commencing an appeal.
     (b) If there is no time period for appealing the underlying governmental action, and a notice of action under RCW 43.21C.080 is used, appeals shall be commenced within the time period specified by RCW 43.21C.080.
     (6)(a) Judicial review under subsection (5) of this section of an appeal decision made by an agency under subsection (3) of this section shall be on the record, consistent with other applicable law.
     (b) A taped or written transcript may be used. If a taped transcript is to be reviewed, a record shall identify the location on the taped transcript of testimony and evidence to be reviewed. Parties are encouraged to designate only those portions of the testimony necessary to present the issues raised on review, but if a party alleges that a finding of fact is not supported by evidence, the party should include in the record all evidence relevant to the disputed finding. Any other party may designate additional portions of the taped transcript relating to issues raised on review. A party may provide a written transcript of portions of the testimony at the party's own expense or apply to that court for an order requiring the party seeking review to pay for additional portions of the written transcript.
     (c) Judicial review under this chapter shall without exception be of the governmental action together with its accompanying environmental determinations.
     (7) Jurisdiction over the review of determinations under this chapter in an appeal before an agency or superior court shall upon consent of the parties be transferred in whole or part to the shorelines hearings board. The shorelines hearings board shall hear the matter and sign the final order expeditiously. The superior court shall certify the final order of the shorelines hearings board and the certified final order may only be appealed to an appellate court. In the case of an appeal under this chapter regarding a project or other matter that is also the subject of an appeal to the shorelines hearings board under chapter 90.58 RCW, the shorelines hearings board shall have sole jurisdiction over both the appeal under this section and the appeal under chapter 90.58 RCW, shall consider them together, and shall issue a final order within one hundred eighty days as provided in RCW 90.58.180.
     (8) For purposes of this section and RCW 43.21C.080, the words "action", "decision", and "determination" mean substantive agency action including any accompanying procedural determinations under this chapter (except where the word "action" means "appeal" in RCW 43.21C.080(2)). The word "action" in this section and RCW 43.21C.080 does not mean a procedural determination by itself made under this chapter. The word "determination" includes any environmental and human health document required by this chapter and state or local implementing rules. The word "agency" refers to any state or local unit of government. Except as provided in subsection (5) of this section, the word "appeal" refers to administrative, legislative, or judicial appeals.
     (9) The court in its discretion may award reasonable attorneys' fees of up to one thousand dollars in the aggregate to the prevailing party, including a governmental agency, on issues arising out of this chapter if the court makes specific findings that the legal position of a party is frivolous and without reasonable basis.

Sec. 7   RCW 43.21C.110 and 1997 c 429 s 47 are each amended to read as follows:
     It shall be the duty and function of the department of ecology:
     (1) To adopt and amend thereafter rules of interpretation and implementation of this chapter, subject to the requirements of chapter 34.05 RCW, for the purpose of providing uniform rules and guidelines to all branches of government including state agencies, political subdivisions, public and municipal corporations, and counties. The proposed rules shall be subject to full public hearings requirements associated with rule ((promulgation)) adoption. Suggestions for modifications of the proposed rules shall be considered on their merits, and the department shall have the authority and responsibility for full and appropriate independent ((promulgation and)) adoption of rules, assuring consistency with this chapter as amended and with the preservation of protections afforded by this chapter. The rule-making powers authorized in this section shall include, but shall not be limited to, the following phases of interpretation and implementation of this chapter:
     (a) Categories of governmental actions which are not to be considered as potential major actions significantly affecting the quality of the environment and human health, including categories pertaining to applications for water right permits pursuant to chapters 90.03 and 90.44 RCW. The types of actions included as categorical exemptions in the rules shall be limited to those types which are not major actions significantly affecting the quality of the environment and human health. The rules shall provide for certain circumstances where actions which potentially are categorically exempt require environmental review. An action that is categorically exempt under the rules adopted by the department may not be conditioned or denied under this chapter.
     (b) Rules for criteria and procedures applicable to the determination of when an act of a branch of government is a major action significantly affecting the quality of the environment and human health for which a detailed statement is required to be prepared pursuant to RCW 43.21C.030.
     (c) Rules and procedures applicable to the preparation of detailed statements and other environmental documents, including but not limited to rules for timing of environmental review, obtaining comments, data and other information, and providing for and determining areas of public participation which shall include the scope and review of draft environmental impact statements.
     (d) Scope of coverage and contents of detailed statements assuring that such statements are simple, uniform, and as short as practicable; statements are required to analyze only reasonable alternatives and probable adverse environmental and human health impacts which are significant, and may analyze beneficial impacts.
     (e) Rules and procedures for public notification of actions taken and documents prepared.
     (f) Definition of terms relevant to the implementation of this chapter including the establishment of a list of elements of the environment. Analysis of environmental and human health considerations under RCW 43.21C.030(((2))) (1)(b) may be required only for those subjects listed as elements of the environment (or portions thereof). The list of elements of the environment shall consist of the "natural" and "built" environment. The elements of the built environment shall consist of public services and utilities (such as water, sewer, schools, fire and police protection), transportation, environmental health (such as explosive materials and toxic waste), and land and shoreline use (including housing, and a description of the relationships with land use and shoreline plans and designations, including population).
     (g) Rules for determining the obligations and powers under this chapter of two or more branches of government involved in the same project significantly affecting the quality of the environment and human health.
     (h) Methods to assure adequate public awareness of the preparation and issuance of detailed statements required by RCW 43.21C.030(((2)(c))) (1)(b)(iii).
     (i) To prepare rules for projects setting forth the time limits within which the governmental entity responsible for the action shall comply with the provisions of this chapter.
     (j) Rules for utilization of a detailed statement for more than one action and rules improving environmental analysis of nonproject proposals and encouraging better interagency coordination and integration between this chapter and other environmental laws.
     (k) Rules relating to actions which shall be exempt from the provisions of this chapter in situations of emergency.
     (l) Rules relating to the use of environmental documents in planning and decision making and the implementation of the substantive policies and requirements of this chapter, including procedures for appeals under this chapter.
     (m) Rules and procedures that provide for the integration of environmental review with project review as provided in RCW 43.21C.240. The rules and procedures shall be jointly developed with the department of community, trade, and economic development and shall be applicable to the preparation of environmental documents for actions in counties, cities, and towns planning under RCW 36.70A.040. The rules and procedures shall also include procedures and criteria to analyze planned actions under RCW 43.21C.031(2) and revisions to the rules adopted under this section to ensure that they are compatible with the requirements and authorizations of chapter 347, Laws of 1995, as amended by chapter 429, Laws of 1997. Ordinances or procedures adopted by a county, city, or town to implement the provisions of chapter 347, Laws of 1995 prior to the effective date of rules adopted under this subsection (1)(m) shall continue to be effective until the adoption of any new or revised ordinances or procedures that may be required. If any revisions are required as a result of rules adopted under this subsection (1)(m), those revisions shall be made within the time limits specified in RCW 43.21C.120.
     (2) In exercising its powers, functions, and duties under this section, the department may:
     (a) Consult with the state agencies and with representatives of science, industry, agriculture, labor, conservation organizations, state and local governments, and other groups, as it deems advisable; and
     (b) Utilize, to the fullest extent possible, the services, facilities, and information (including statistical information) of public and private agencies, organizations, and individuals, in order to avoid duplication of effort and expense, overlap, or conflict with similar activities authorized by law and performed by established agencies.
     (3) Rules adopted pursuant to this section shall be subject to the review procedures of chapter 34.05 RCW.

Sec. 8   RCW 43.21C.240 and 2003 c 298 s 2 are each amended to read as follows:
     (1) If the requirements of subsection (2) of this section are satisfied, a county, city, or town reviewing a project action shall determine that the requirements for environmental analysis, protection, and mitigation measures in the county, city, or town's development regulations and comprehensive plans adopted under chapter 36.70A RCW, and in other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental and human health impacts of the project action to which the requirements apply. Rules adopted by the department according to RCW 43.21C.110 regarding project specific impacts that may not have been adequately addressed apply to any determination made under this section. In these situations, in which all adverse environmental and human health impacts will be mitigated below the level of significance as a result of mitigation measures included by changing, clarifying, or conditioning of the proposed action and/or regulatory requirements of development regulations adopted under chapter 36.70A RCW or other local, state, or federal laws, a determination of nonsignificance or a mitigated determination of nonsignificance is the proper threshold determination.
     (2) A county, city, or town shall make the determination provided for in subsection (1) of this section if:
     (a) In the course of project review, including any required environmental analysis, the local government considers the specific probable adverse environmental and human health impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan, subarea plan element of the comprehensive plan, or other local, state, or federal rules or laws; and
     (b) The local government bases or conditions its approval on compliance with these requirements or mitigation measures.
     (3) If a county, city, or town's comprehensive plans, subarea plans, and development regulations adequately address a project's probable specific adverse environmental and human health impacts, as determined under subsections (1) and (2) of this section, the county, city, or town shall not impose additional mitigation under this chapter during project review. Project review shall be integrated with environmental analysis under this chapter.
     (4) A comprehensive plan, subarea plan, or development regulation shall be considered to adequately address an impact if the county, city, or town, through the planning and environmental review process under chapter 36.70A RCW and this chapter, has identified the specific adverse environmental and human health impacts and:
     (a) The impacts have been avoided or otherwise mitigated; or
     (b) The legislative body of the county, city, or town has designated as acceptable certain levels of service, land use designations, development standards, or other land use planning required or allowed by chapter 36.70A RCW.
     (5) In deciding whether a specific adverse environmental and human health impact has been addressed by an existing rule or law of another agency with jurisdiction with environmental expertise with regard to a specific environmental impact, the county, city, or town shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the county, city, or town shall base or condition its project approval on compliance with these other existing rules or laws.
     (6) Nothing in this section limits the authority of an agency in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by this chapter.
     (7) This section shall apply only to a county, city, or town planning under RCW 36.70A.040.