CHAPTER 92.30
ENVIRONMENTAL REVIEW
NEW SECTION. Sec. ___. A new section is added to chapter 43.21C to read as follows:
In determining whether mitigation measures, including reasonable alternatives to the proposal, should be studied, and in determining the scope of such studies, the lead agency should be governed by the rule of reason as explicated by the Washington courts. In general, the greater the scale of a project and the more significant its impacts, the broader the range of alternatives that should be studied and the more deeply the impacts should be analyzed. For proposals modest in scale and impact, a study of potential means of mitigating the adverse environmental impacts generally would be sufficient.
NEW SECTION. Sec. ___. A new section is added to chapter 43.21C RCW to read as follows:
(1) The applicant for a proposed project action shall prepare a project permit environmental checklist (environmental checklist) provided for by rule adopted pursuant to RCW 43.21C.110(1). The applicant shall provide the following information in the environmental checklist:
(a) Identify the probable adverse environmental impacts of the proposal; and
(b) Identify, to the extent practicable for the applicant, for each probable adverse environmental impact identified under (a) of this subsection:
(i) Existing documents prepared pursuant to this chapter, chapter 36.70A RCW, and other local, state, and federal laws that examine some or all of the probable adverse environmental impacts of the proposal;
(ii) Local, state, or federal regulatory processes through which the proposal's probable adverse environmental impacts will be analyzed and addressed; and
(iii) Any measures that the applicant proposes in order to mitigate those probable adverse environmental impacts.
(2) Based on the information provided in the environmental checklist and any additional information relied upon by the lead agency, the lead agency shall issue a preliminary environmental assessment that:
(a) Lists the probable adverse environmental impacts of the proposal that are identified in the environmental checklist or that are identified by the lead agency based upon its independent evaluation of the proposal.
(b) Identifies existing documents prepared pursuant to this chapter, chapter 36.70A RCW, and other local, state, and federal laws that examine some or all of the proposal’s probable adverse environmental impacts;
(c) Identifies the regulatory processes through which the proposal's probable adverse environmental impacts will be analyzed and addressed;
(d) Identifies any studies the lead agency tentatively believes may be necessary under this chapter;
(e) Identifies any mitigation, including alternatives, that the applicant proposes to implement or that the lead agency preliminarily believes may be appropriate, reasonable, and capable of being accomplished; and
(f) Invites comment on the preliminary environmental assessment.
(3) The lead agency shall give notice of the preliminary environmental assessment as follows:
(a) A lead agency that is a local government planning under RCW 36.70A.040 shall issue the preliminary environmental assessment with the notice of application required by RCW 36.70B.110. If the lead agency is also the proponent of a project, it may provide notice that is consistent with RCW 36.70B.110(4) before it submits an application for a project permit;
(b) A lead agency that is not a local government planning under RCW 36.70A.040 shall give notice of the preliminary environmental assessment in a manner that is consistent with RCW 36.70B.110(4); and
(c) The lead agency shall give notice of the preliminary environmental assessment to agencies with jurisdiction, the department of ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the project.
(4) The lead agency shall accept comments on the preliminary environmental assessment for fourteen days after the notice of the preliminary environmental assessment has been issued. The comment period shall be extended to twenty-eight days if a written request for an extension is received within the initial fourteen day period. The lead agency also shall accept and review comments received after the close of the comment period but before the agency makes its environmental assessment.(5) After considering the comments received in response to the preliminary environmental assessment, the lead agency shall issue an environmental assessment that:
(a) Identifies the probable adverse environmental impacts of the proposal that do not need further study because:
(i) The impacts are not sufficiently significant to warrant further study;
(ii) The lead agency has determined pursuant to RCW 43.21C.240 that:
(A) The impacts are acceptable pursuant to existing plans, regulations, or SEPA policies; or
(B) The impacts will be avoided or reduced by local, state, or federal regulatory requirements to levels requiring no further study; or
(iii) The impacts already have been adequately analyzed and addressed in environmental documents submitted by the applicant or known to and identified by the agency; or
(iv) The applicant has agreed to modify the proposal in order to avoid or mitigate the impacts;
(b) Identifies the probable adverse impacts of the proposal and reasonable mitigation measures that will be studied further pursuant to local, state, or federal regulations. If the impacts cannot be mitigated, reasonable alternatives shall also be considered; and
(c) For those impacts that have not been analyzed and addressed under (a) or (b) of this subsection, identifies the probable adverse impacts of the proposal and reasonable mitigation measures that will be studied further pursuant to the lead agency’s authority under this chapter. If impacts cannot be mitigated, reasonable alternatives shall also be considered.
(6) Non-duplication. The lead agency shall not require the applicant to:
(a) Duplicate studies under this chapter that have been or will be prepared pursuant to other authority or the applicant’s agreement; or
(b) Prepare studies under this chapter that are determined not to be needed pursuant to the analysis of subsection (5)(a) of this section.
(7) Summary of environmental studies. (a) Studies and environmental documents required under subsection (5)(c) of this section, shall be conducted and prepared by the lead agency, or the applicant at the lead agency’s discretion. The results and conclusions of those studies and environmental documents shall be summarized in lay terms in a summary of environmental studies.
(b) Separate draft and final summary of environmental studies shall not be required.
(c)(i) Pursuant to standards adopted by the lead agency, for a project of exceptional magnitude, complexity, or community concern, the lead agency shall send copies of the summary of environmental studies to all persons who submitted comments on the preliminary environmental assessment or requested notice of the lead agency’s decision.
(ii) The lead agency shall accept comments on the summary of environmental studies and the environmental documents summarized in the summary of environmental studies for fourteen days after notice of the availability of the summary of environmental studies has been issued. The comment period shall be extended to twenty-eight days if a written request for an extension is received within the initial fourteen day period. The lead agency shall respond to the written comments in writing and append its response and the written comments to the summary of environmental studies. The lead agency may respond to comments individually, respond to a group of comments, cross-reference comments to corresponding changes in the summary of environmental studies, or use other reasonable means to indicate the lead agency’s response to the comments.
(8) Decision. (a) A lead agency that is also a permitting agency, if it is satisfied with the adequacy of the environmental documents prepared for the proposal as required by local, state, and federal law and pursuant to studies conducted pursuant to subsection (5)(c) of this section, shall issue a consolidated summary of environmental studies and decision on the merits in a manner that is consistent with RCW 36.70B.120. A local government may provide by ordinance or resolution for the same or a different decision maker or hearing body or officer for different categories of project permits to issue the summary of the environmental studies and to make the decision on the decision on the merits.
(b) As part of the decision on the merits the lead agency may impose conditions to mitigate the adverse environmental impacts of the proposal. In imposing mitigation, the lead agency may exercise:
(i) The substantive authority that is conferred by the regulations it administers; and
(ii) The substantive authority conferred by RCW 43.21C.060, to the extent the lead agency articulates why conditions imposed pursuant to the other regulations it administers are not adequate to mitigate the significant adverse impacts of the proposal.
(c) If the lead agency determines that the studies prepared pursuant to subsection (5)(c) of this section do not adequately address the environmental impacts of the proposal required to be studied and the applicant states in writing that it believes the studies do adequately address those environmental impacts, the lead agency shall either:
(i) Issue a decision denying the application; or
(ii) Issue a decision and impose conditions on the proposal as provided in (b) of this subsection.
(9) Administrative Appeals. If the lead agency chooses to provide an administrative appeal the process shall be consistent with this subsection.
(a) Environmental assessment.
(i) The applicant may appeal an environmental assessment. The appeal shall be filed within fourteen days after the environmental assessment is issued. If the applicant appeals the environmental assessment, a person who has commented on the record on the preliminary environmental assessment may intervene or appeal the environmental assessment within fourteen days after the notice of appeal. A person who does not intervene or appeal the environmental assessment after the applicant files an appeal under (a)(i) of this subsection shall waive the right to subsequent appeal of the environmental assessment.
(ii) If the lead agency is not a permitting agency, a person other than the applicant may appeal an environmental assessment at the time the environmental assessment is issued. The appeal shall be filed within fourteen days after the date the environmental assessment is issued.
(iii) Except as otherwise provided in (a)(i) of this subsection, if the lead agency is a permitting agency, a person other than the applicant may appeal an environmental assessment only when the agency makes its decision on the merits of the proposal.
(b) Mitigation or conditions imposed under this chapter.
(i) The applicant may file an appeal challenging the reasonableness of discretionary conditions of mitigation imposed pursuant to the exercise of substantive SEPA authority under RCW 43.21C.060; and
(ii) A person other than the applicant may challenge the lead agency’s decision not to impose mitigation pursuant to the agency’s standards for administrative review of its decisions to condition or deny.
(10) Judicial Review. (i) Except as otherwise specifically provided in this in (ii) of this subsection, judicial review under this chapter shall be of the governmental action together with its accompanying environmental determinations.
(ii) The applicant for a permit, prior to the governmental action on the permit application, may seek judicial review of the determination that environmental documents prepared pursuant to an environmental assessment made under subsection (5)(c) of this section do not adequately analyze and address the significant adverse environmental impacts required to be studied.
NEW SECTION. Sec. ___. (1) In addition to the authority provided in RCW 43.21C.110(1), the department shall adopt and amend rules and procedures that provide for more appropriately detailed environmental impact analysis of comprehensive plans, subarea plans and implementing development regulations adopted or amended by those jurisdictions planning under RCW 36.70A.040 in order to implement and achieve the goals and purposes underlying RCW 43.21C.240. The rules and procedures shall provide for more detailed environmental analysis of such nonproject actions that:
(a) Identifies and emphasizes system-wide, area-wide, and cumulative impacts, including impacts to critical areas, endangered or threatened species habitats, watersheds, water quality, ground water movement, air quality, shorelines, historic and cultural resources, utilities, transportation, and public services;
(b) Identifies the choices and tradeoffs made in the adoption and implementation of plans and regulations in terms of their impacts on the environment, required mitigation, levels of service, and rates of growth;
(c) Is sufficient to provide an environmental baseline for project review so as to limit project review to those project specific impacts that were neither analyzed nor reasonably anticipated during adoption of the plans and regulations; and
(d) Allows for the analysis to be prepared as a separate document, as a separate element of the plan or regulation, or integrated into the elements or provisions of the plan or regulation.
(2) The rules and procedures shall be jointly developed with the department of community, trade, and economic development and shall apply only to comprehensive plans, subarea plans, and development regulations adopted or amended, or required to be adopted or amended, after the effective date of the rules adopted under this section.
10/13/98