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WSR 97-03-130

PREPROPOSAL STATEMENT OF INQUIRY

DEPARTMENT OF ECOLOGY

[Filed January 22, 1997, 10:55 a.m.]

Subject of Possible Rule Making: Amend chapter 197-11 WAC, State Environmental Policy Act rules.

Statutes Authorizing the Agency to Adopt Rules on this Subject: Chapter 43.21C RCW, State Environmental Policy Act.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: A rule-making effort began in late 1995 as required by ESHB 1724 (1995). This effort has demonstrated a need to review the existing categorical exemptions authorized by chapter 197-11 WAC. The categorical exemptions have not been reviewed comprehensively since 1984. Many changes have occurred since 1984 to planning-related statutes, and new statutes have been passed (e.g. Growth Management Act). It may be necessary to add new exemptions and revise or delete existing ones in response to these changes.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: Federal agencies: Not applicable. State agencies include Departments of Transportation, Fish and Wildlife, Natural Resources, and others. Most state agencies are involved in the SEPA process and may have an interest in reviewing categorical exemptions.

Process for Developing New Rule: The exact process will be determined after the close of the comment period discussed below. It will likely be some form of negotiated rule making.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication. The Department of Ecology intends to review and possibly revise the categorical exemptions in chapter 197-11 WAC, SEPA rules. This CR-101 announces the opening of a public comment period. Any interested persons are invited to send written suggestions for any changes (additions, deletions or modifications) in categorical exemptions.

Content of comment letters. The comment letters should be as specific and detailed as possible, and must include the following:

The specific exemption (including WAC section number) being proposed for change or deletion;

The type of change proposed (deletion, wording revision, or new exemption);

A detailed description of the type of activity or project proposed as a new or revised exemption;

Proposed language for the new or revised exemption;

If you represent an agency, the approximate number of actions of this type which have come before you over a particular period of time; and

A clear rationale on why the specific project or activity should or should not be exempt from the SEPA process. Commenters are encouraged to provide examples of problems caused by specific exemptions or lack of exemptions, as well as the environmental, economic or other benefits that would result from the proposed changes. At a minimum, the comment letters should address the factors listed below.

Ecology review of suggested changes. Ecology will review all comment letters and consider suggested changes to the categorical exemptions. In determining whether to propose a new or revised exemption through the rule-making process, the department will consider a number of factors, including the following.

Will the type of project or activity or proposed change be likely to have any adverse environmental impacts? Of these impacts, which are likely to be significant adverse environmental impacts?

(Note: RCW 43.21C.110 limits categorical exemptions in the SEPA rules to "...those types which are not major actions significantly affecting the quality of the environment." Also, WAC 197-11-305 and 197-11-800 currently require review of the potential for cumulatively significant impacts from a proposal composed of multiple exempt actions.)

Is the new or revised categorical exemption consistent with relevant statutory provisions and court decisions?

Will the potential environmental impacts be the same in various locations (for example, rural vs. urban settings)?

Are all of the potentially significant site specific environmental impacts from the type of project or activity considered and adequately address separately from the SEPA process (regulatory overlap/duplication)?

Is there public concern about the type of activity or project that would be exempt? Is there public concern about the ability of the public, agencies, and tribes to receive notice and consider the environmental impacts?

Will the proposed change meet the multiple goals and policies set forth in SEPA (RCW 32.21C.020 [43.21C.020]) and the SEPA rules (WAC 197-11-030), including integrating SEPA and improving the regulatory process?

Send all comment letters to Neil Aaland, Senior Planner, Department of Ecology, Environmental Review Section, P.O. Box 47703, Olympia, WA 98504-7703.

Written comments will be accepted until April 30, 1997. Letters sent by e-mail will not be accepted as formal comments. After this date, we will review the comments and determine how to proceed with the rule-making process. All commenters will receive a written notification on the process that will be used. If you have any questions, please contact Neil Aaland at (360) 407-7045, e-mail naal461@ecy.wa.gov.

January 17, 1997

D.J. Patin

Assistant Director

Legislature Code Reviser

Register

Washington State Code Reviser's Office