Environmental Review and Permitting

Chapter 9
Environmental Review and Permitting

Since the adoption of SEPA in 1972, Washington has required environmental review as a part of the project review process. The adoption of the GMA presents an opportunity to better address certain cumulative impacts of land use decisions when plans are adopted than is currently available through the project review process. Although cumulative impacts are best addressed at the planning stage, this does not mean there should be no consideration of them during project review. In addition, the timing of environmental review presents questions that need resolution.

Over the last few years, increasing attention has been paid to the issue of integrating different local and state governments permits into a single permit through a single process. 1995 Legislation created the Permit Assistance Center and a coordinated permitting process focussed on state permits. This legislation is due to expire in 1999.

The siting of essential public facilities has posed difficulties for local governments, the state, and the public. The GMA provides minimal direction and does not address issues related to regional concerns and impacts. More recently, issues surrounding the siting of group homes, correctional institutions, and related facilities have increased in importance.

Background

State Environmental Policy Act

SEPA was adopted in the early 1970s, in part to ensure that government officials were aware of the impacts of their decisions. In the twenty-five years since its adoption, SEPA has become a fundamental part of this state's system for reviewing the environmental impacts of nearly every type of governmental action, from the adoption of city and county ordinances, to the decision to build a sewage treatment plant or a state highway, to the approval of an application to construct a building.

In the intervening twenty-five years, a number of laws addressing specific environmental issues have also been adopted. These include issues such as the protection of the shorelines, air quality, hazardous waste control, solid waste control, and water quality. Some of these laws have resulted from federal requirements, others have been locally driven. In the early 1980s, the Legislature initiated a comprehensive review of SEPA that led to legislative changes adopted in 1983.

In 1990, the first stage of the Growth Management Act (GMA) was adopted, followed by additional provisions in 1991. As cities and counties have begun to implement the GMA, there have been efforts to evaluate the extent to which these different statutes have resulted in duplication. In 1993, Governor Lowry appointed the Governor's Task Force on Regulatory Reform, in part to address the project review process. The Task Force proposed legislation that was ultimately adopted by the 1995 Legislature as ESHB 1724. That measure included provisions designed to partially integrate SEPA and GMA.

SEPA requires a governmental entity, whether state or local, to analyze the environmental impacts of its major actions. The same basic rules apply whether the proposed action is general in nature - e.g. adopting an ordinance - or project specific. The Department of Ecology has adopted rules to implement SEPA.

The lead agency must make a threshold determination of whether the proposal has probable significant adverse environmental impacts. If the lead agency determines that it does, an Environmental Impact Statement (EIS) must be prepared.

An agency's decisions under SEPA are subject to review administratively, if allowed by the agency, and judicially.

ESHB 1724 included provisions directing that certain land use decisions made in GMA comprehensive plans and development regulations not be reconsidered during project review. These include decisions concerning the type of land use, density of residential develop in an urban growth area, and the availability and adequacy of public facilities identified in the comprehensive plan.⁸ In addition, a city or county planning under the GMA may determine that SEPA's requirements for the analysis of and mitigation for the specific adverse environmental impacts of a project action have been adequately addressed in the jurisdiction's comprehensive plan and development regulations.

Local Government Permit Process

ESHB 1724 established a set of standards for local government permit processes. Although prior law had contained some restrictions on the number and type of local hearings that could be held on a project, ESHB 1724 established strict requirements. In addition, on a trial basis, it required permit decisions to be made within 120 days after an application has been submitted. The 120 day period excludes a number of events, including the time required to prepare an EIS. The trial was originally for three years. It was extended for two additional years in 1998.

ESHB 1724 did not impose any specific requirements on the procedure for conducting local hearings. As with prior law, local governments have discretion on how to structure those hearings, within the basic requirements of due process.

State and local permit coordination and integration

ESHB 1724 added the Permit Coordination Procedures Act and created the Permit Assistance Center in Ecology. The Permit Assistance Center was placed under sunset review and is due to expire in 1999. The Joint Legislative Audit and Review Committee concluded its review has recommended that the Center be reauthorized. In addition, the Joint Legislative Rural Economic Development Task Force has been considering the role of the Permit Assistance Center in addressing economic development issues in the rural areas.

In the early 1970s, the Environmental Coordination Procedures Act was enacted by legislature. After some initial interest, that law fell into disuse and was repealed by ESHB 1724. The replacement statute, the Permit Coordination Procedures Act, provides a combination of information sharing and permit coordination. The later takes place only at the request of an applicant. The process includes the appointment of a project facilitator to work toward ensuring that timelines agreed to by the parties are met. The process provides for the coordination of state permits. A local government may be invited to participate in the process, but may not be required to do so. The act sunsets in 1999.

Discussion

Environmental Review

Non-project vs. Project Environmental Review

Although SEPA and its implementing rules distinguish between the environmental review conducted for projects from that required for legislative and other non-project actions, the standards for conducting non-project environmental review are not clear and may not be meaningful. For example, the alternatives analysis required for an EIS, which requires a review of the no-action alternative, may not make sense in cases where an agency is required by law to take some action. The alternative of not adopting a comprehensive plan is not an option that a local government required to plan under the GMA can realistically consider.

The existing SEPA process for environmental review of non-project actions - actions such as the enactment and amendment of comprehensive plans and development regulations - is not always conducive to good environmental review. The existing process can discourage or thwart good environmental review. The only environmental document prepared for most legislative enactments is a SEPA checklist. This checklist usually is prepared after the proposed legislation has been written. The county or city prepares and reviews the checklist to determine whether the adverse environmental impacts disclosed in it are "significant" within the meaning of SEPA. Counties and cities have an incentive not to find impacts "significant" because when they do they must prepare an expensive and time-consuming EIS. If impacts are determined not to be "significant" in the SEPA sense, then no further environmental review beyond the checklist is performed. However, even "nonsignificant" plans or regulations often have environmental consequences and entail environmental tradeoffs that ought to be acknowledged and understood by the policy-makers considering their adoption and the citizens whose conduct will be regulated.

Many cities and counties issued determinations of nonsignificance before enacting their GMA-required plans and regulations. These negative threshold determinations may well have been appropriate under existing law, especially in jurisdictions that were simply amending their existing plans and regulations. The quality of the plans and regulations would have been improved, however, if some environmental review had accompanied the development, drafting, and enactment of these plans or regulations. SEPA should encourage environmental review that is tailored in scope to the potential impacts of the plan or regulation being enacted, and such environmental review should occur while the plan or regulation is being developed, not performed as an after-the-fact justification for decisions that already have been made.

Threshold determinations and Environmental Impact Statements

The SEPA threshold determination process divides project actions into the few that require EISs and the many that do not. The great majority of projects receive determinations of nonsignificance (DNSs) or mitigated determinations of nonsignificance (MDNSs). The amount and quality of the environmental review that these projects receive varies from project to project and jurisdiction to jurisdiction because SEPA does not provide a meaningful standard for determining significance or a clear and consistent process for evaluating impacts that are not deemed significant. In addition, SEPA does not provide clear direction on the use a city or county should make of existing environmental documents that have been prepared for other projects or for non-project actions such as the adoption of a sub-area plan. There is general agreement that, during project review, the SEPA process ought to focus on whether the impacts of a project have been identified and studied to the extent appropriate given the nature and extent of those impacts. In the view of some, the present threshold determination process distracts from that determination and leads to confusion, duplication of effort, procedural gamesmanship, and unnecessary delay. For others, the threshold determination is an important step in the project review process that ensures the public has notice of project impacts and that environmental concerns are addressed.

Reliance on GMA Policy Decisions

ESHB 1724 allowed a GMA jurisdiction, during project review, to rely on its plans and regulations that have adequately addressed environmental impacts. However, the process is sufficiently uncertain that it has not been used often.

One reason suggested for this lack of use is that little guidance has been provided to cities and counties to assist them in conducting the environmental analysis on a comprehensive plan. Because of the uncertainties involved, and because of the expense, few cities or counties have undertaken the effort.

Multiple Regulatory Requirements

In addition to requirements under GMA to designate and protect critical areas, the state and cities and counties implement a number of other state and federal requirements designed to protect the environment. These include provisions to manage and protect the shorelines, regulate stormwater, and protect streams and wetlands. In some instances, although not in all, the requirements have been adopted after thorough environmental review.

During project review, a project proponent may be required to study pursuant to SEPA impacts of the project that are regulated by other development regulations, even though those regulations may have been designed to address those impacts and provide for mitigation. The business community believes this duplication is unnecessary and should be eliminated. It suggests that SEPA review may not be necessary for those impacts already addressed by development standards. The environmental community suggests that this issue can be resolved through consistent implementation of existing laws, including ESHB 1724.

Local government permit process

The requirement that counties and cities make a decision on a project application within 120 days is viewed as a mixed success by participants in the land use permitting process. Applicants generally view the statute as too flexible. They do not believe that the time periods are certain enough. Members of the public view the provisions as creating a process that moves too quickly and does not allow enough time for the public to review proposals and participate in the decision making process in a meaningful manner. Local government officials express concern about the paperwork involved.⁹

The 120-day time limit was enacted as a three-year pilot project in 1995 and was due to expire on June 30, 1998. The Commission, directed to study the 120 day time limit and its impact, reported to the Governor and the Legislature in 1997. The report concluded that not enough time had elapsed to truly evaluate the effect of the requirement. It recommended that the sunset date should be extended to June 30, 2000 to allow time for additional study of the impacts of the program. The Legislature enacted the Commission's recommendation during the 1998 session. The Commission also noted that an additional study would need to be funded and assigned to a state agency or other organization. That has not occurred.

State and local permit coordination and integration

The Coordinated Permit Process is underutilized despite its significant potential. First, applicants are often not familiar with the process, and are unaware of its value in managing multiple permits, time schedules, hearings, and appeals. Second, although many of the permits for projects are the responsibility of local agencies, local agencies are not required to participate in the process.

The major value of the Coordinated Permit Process is the "internal coordinator" feature. The coordinator serves as the main point of contact for the permit applicant and manages procedural aspects of the process. The coordinator assures that the applicant has sufficient information to apply for multiple permits, coordinates the review of those permits by the participating permit agencies, ensures that timely decisions are made, and assists in resolving any conflict or inconsistency among project permit requirements and conditions.

The Coordinated Permit Process is approximately three years old. The process has led to cooperative review of four projects, and one has completed permitting. With more experience, the process may be suitable for mandatory application to certain classes of high impact, multi-jurisdictional projects.

One downside of the Coordinated Permit Process may be its formality. The formal commitment to timelines can cause reluctance on the part of both the applicant and the agencies to sign the agreement until they are sure they can meet the agreed to commitments. While this may not prevent the permitting processes from moving forward, the negotiation can occupy many hours of governmental and private sector staff time.

Options

Threshold Determinations, SEPA, and GMA Integration

The Commission established an advisory committee to consider revisions to SEPA and GMA as a way to better integrate the two statutes. The advisory committee developed an outline of a proposal for the Commission's review. The proposal would have replaced the SEPA threshold determination with a different procedure to evaluate environmental impacts. The procedure would rely on a revised environmental checklist identifying probable impacts. The lead agency would make a preliminary determination listing the probable impacts and identifying existing documents, regulations, and processes that apply to the proposal. The lead agency would issue the preliminary determination at same time as the notice of application. Public comment would be solicited. The final determination would identify those impacts that are not significant, those that have already been analyzed and addressed by other documents or regulations, and those that require further study under SEPA. An environmental report would be prepared on those impacts needing further study under SEPA. When the report is completed, the lead agency would issue its decision on the merits and decide what conditions and mitigation should be imposed. The application could be denied if the adverse impacts cannot be mitigated. The applicant would be able to appeal a determination that requires additional studies. Other parties could appeal SEPA issues at the same time as the appeal on the underlying governmental action.

Pros:

Proponents note that the SEPA threshold determination process divides project actions into the few that require Environmental Impact Statements and the many that do not. They point out that the great majority of projects receive DNSs or MDNSs and suggest that this makes the threshold determination meaningless in many cases.

Proponents argue that the amount and quality of the environmental review that projects receive varies from project to project and jurisdiction to jurisdiction, because SEPA does not provide a meaningful standard for determining significance or a clear and consistent process for evaluating impacts that are not deemed significant.

Proponents point out that SEPA does not provide clear direction on how a city or county should use existing environmental documents that have been prepared for other projects or for non-project actions. They believe this proposal will address that situation.

Proponents believe that SEPA ought to focus on whether the impacts of a project have been identified and studied to the extent appropriate given the nature and extent of those impacts. They believe that the present threshold determination process distracts from that determination and leads to confusion, duplication of effort, procedural gamesmanship, and unnecessary delay.

Cons:

The environmental community believes that existing law already provides all the authority and direction that is needed for local governments to rely on decisions made through comprehensive plans and development regulations during project review.
Home builders and other developers are concerned that this proposal could raise the cost of permitting for small projects and will lead to even higher housing prices.
Local governments say they have not yet caught up with the changes made to SEPA in 1995. They suggest more training and technical assistance should be provided to assist local governments in dealing with those changes before making more changes.
The environmental community and tribes note that SEPA applies to a wide range of actions that extend beyond the GMA. They believe the proposal may exclude these other actions from environmental review. They say this will either result in two different environmental review processes, one for GMA actions and another for everything else, or will eliminate environmental review for all of those other actions. They note that one benefit of SEPA as it currently exists is that it provides a relatively consistent process for environmental review no matter what type of decision is being considered.
Members of the environmental community fear the proposal will result in less environmental review. They say that when the state is facing potential salmon listings under the ESA, this is the wrong direction. They believe there is a need for more environmental review, not less.

The Commission has concluded that eliminating the threshold determination process as proposed should not be recommended. Although the goal of better environmental review and analysis was supported, the negatives were outweighed by the benefits at this time. However, this may be an idea that deserves additional review and consideration in the future.

Environmental Review of Non-Project Actions

Amend SEPA to distinguish between the type of environmental review conducted on non-project actions from that conducted on project actions. Environmental review of non-project actions could specifically include the need to look at cumulative impacts of proposals. Specific guidance for conducting environmental review of comprehensive plans and development regulations could be provided to increase the quality of environmental review and make it more likely that projects consistent with the comprehensive plan and development regulations would have had most of their impacts adequately analyzed and addressed.

Pros:

Proponents suggest that the quality of environmental review of non-project actions, including the analysis of alternatives, should be improved and made more consistent, so that legislative bodies and citizens alike understand the environmental tradeoffs inherent in legislative choices and so that the environmental consequences of such choices do not need to be studied again at the project level.
Proponents note that the legislative decisions embodied in plans and regulations have environmental consequences and entail environmental tradeoffs that ought to be identified and considered by the policy-makers who adopt such plans and regulations.
If a local government wants to prepare an EIS before the adoption of a comprehensive plan or development regulation, proponents argue that the current SEPA rules provide little guidance on the content of such a non-project EIS.

Cons:

Those expressing concern about this option believe that it is premised on the belief that with enough environmental review of a comprehensive plan and development regulations, individual projects will need little or no environmental review because the fundamental choices and tradeoffs were made during planning. However, those who express concern about this approach believe that the tradeoffs frequently are not analyzed during planning. They believe that some environmental review will be needed on most projects to be certain that their impacts have in fact been analyzed and addressed. They also express concern that the analysis of impacts in the abstract at the planning state cannot anticipate all of the impacts that will be present when the plan or regulation is applied to specific property.
Local governments point out that to make this approach work, funding will be necessary to allow them to conduct the required review on the comprehensive plan and development regulations.

Permit Coordination and Consolidation

Reauthorize the Environmental Permit Assistance Act - Chapter 90.60 RCW.

The Permit Assistance Center and its powers and duties, including the Coordinated Permit Process, will be terminated June 30, 1999, as provided in RCW 43.131.388. The Permit Assistance Center and the Coordinated Permit Process should be extended and expanded to encourage local agency participation. In addition there should be specific, ongoing evaluation of whether to create a mandatory coordinated process for classes of high impact projects. This ongoing evaluation should consider whether there should be an impact threshold for mandatory inclusion in the process together with appropriate exemptions.

Pros:

Proponents argue that even though the coordinated permit process has not had extensive use, the Permit Assistance Center has been an important resource of information. They point out that the Center has received generally positive ratings from those who have used its services.
Proponents note that one of the difficulties in using the existing coordinated process is that it only applies to state permits. They suggest that in order to make the process more useful, local permits should be included.
Proponents suggest that for projects with significant impacts, and significant coordination issues, it may make sense to require the use of the coordinated permit process. They believe this question deserves further study.

Cons:

Some in the business community have noted that the Permit Assistance Center is currently being reviewed by the legislature under the sunset review process. In addition, the Joint Legislative Task Force on Rural Economic Development is looking at the Permit Assistance Center. They suggest that these processes should be allowed to run their course without Commission interference.

Additional Changes for Consideration

A number of additional improvements to the permit assistance center and the coordinated permit process should be considered. These include:

The cost recovery section in the Environmental Permit Assistance Act (RCW 90.60.100) could be expanded to allow, by mutual agreement of the parties, other agencies to recover or accept cost-reimbursement. The statute currently allows only the coordinating permit agency to recover costs of performing coordinated permit services.
There might be value in encouraging a combined appeals and hearings process for appeals of permits within the Coordinated Permit Process. Hearings can now be combined for those permits which are under the appellate jurisdiction of boards within the Environmental Hearings Office. Legislative direction to further encourage consolidation might be considered.
The Permit Assistance Center should continue to reexamine and improve the mechanics of the Coordinated Permit Process scheduling agreement and move towards developing consolidated permit processes.
The Permit Assistance Center should continue to use multi-agency permit coordination teams to help streamline the permitting process for projects that do not need the formality of the Coordinated Permit Process. It should also work with entities such as ports, economic development councils, and similar organizations to make its services known.
There should be a review of whether regional permit assistance centers should be established to provide more locally based services.
A pilot project should be considered to test a consolidated permit process. It should focus on specific projects and involve local governments and state agencies. As a starting point, two projects, one West and one East of the Cascades, could be identified. Funding for the pilot might be necessary.
There should be an exploration of additional methods of obtaining federal, tribal and local consistency and participation in the coordinated permit process. Where necessary and appropriate, sufficient funding needs to be provided to enable jurisdictions to pay for or recover the costs of permit coordination and consolidation.

Pros:

Proponents note that the current scope of responsibility for the permit assistance center is extremely limited. They believe these options may provide some opportunities to extend the use of the permit assistance center as well as expanding the process to include permit consolidation and integration as well as permit coordination.

Cons:

Some have noted that the options do not provide sufficient detail on which to gauge whether they make sense. These commentators suggest the options need more review and consideration first.

Recommendations

(1) Environmental Review.

(a) Provide procedural and substantive guidance for the environmental review of comprehensive plans and development regulations to ensure that cumulative environmental impacts of plan decisions and subsequent implementation are analyzed and addressed.

(b) Consider whether additional changes should be made to the environmental review process to ensure that decisions made as part of the adoption of a comprehensive plan and development regulations, that have been subject to environmental review, are not subject to duplicative review during the project review.

(2) Local Project Review. Establish optional minimum standards for local government administrative hearings in order to make the local government process more thorough and consistent. This is seen as a necessary prerequisite to further consideration of having shoreline permit appeals heard on the record rather than de novo.

(3) 120-day Project Review Time Limit. Designate an entity to study the impacts of the 120-day project review time limit in order to make a recommendation to the legislature and the governor prior to June 30, 2000. The 120-day time limit, originally due to expire in 1998, was extended for two years. The study should examine, among other issues, whether local governments are meeting the timelines, whether the timelines should be modified to recognize the complexity of projects, and whether sanctions for failure to meet the deadlines would be appropriate.

(4) Coordinated State Permit Process.

(a) Extend the permit assistance center.

(b) Consider a pilot project for the integration of state permit requirements into a single permit, such as consolidating Joint Aquatic Resource Permit Application (JARPA) permits into a single permit. The idea of a consolidated state and local permit should also be considered through an appropriate pilot program.

(5) Funding. Develop a consolidated land use code approach that provides sufficient funding to perform adequate environmental review at the planning stage, in order to reduce duplicative environmental review at the project review stage.

(6) SEPA. Further consideration should be given to resolving the key issues that divide stakeholders over the future of SEPA. Some of the issues that deserve further consideration are:

The environmental community and the Commission's tribal representative cite SEPA as a cornerstone of environmental protection in our state. At a time when salmon recovery is on the top of the state agenda, they argue that now is not the time to weaken environmental protection. They refer to circumstances where GMA plans had little or no environmental review, thus requiring such information at the project stage to adequately analyze the environmental impacts of projects. They also point out that cumulative environmental impacts of development are not handled well under the current system, but that project review is the place where it is most likely to occur. They also note that SEPA applies to more than project development and GMA planning, because it applies to all government "action".

The business community believes regulatory reform and GMA promised more certainty in the permit process, but in reality that predictability has not occurred. In their view, SEPA and the duplicative layers of process are still used as a tool to slow down projects, which adds to the problem of affordable housing in our region.

Local governments cite the lack of available funds to do detailed and comprehensive environmental review at the planning stage. They also indicate that many times property owners are either unsure of development plans or are unwilling to share such plans at the planning stage; thus, environmental review cannot always predict accurately what will actually be built.

A resolution of these issues will need further careful deliberation and consensus building. The dialogue should continue. After the salmon recovery plan is in place, and further GMA plans are in place, it is possible the context will be different. Adequate funding of environmental review will be necessary at the plan stage to implement any reforms.

⁸ RCW37.70A.030.
⁹ See, Permit Monitoring Case Study Report, Report to the Land Use Study Commission, David Evans and Associates (August 1997)

Land Use Study Commission Final Report
December 1998



(1)	Environmental Review.

	(a)	Provide procedural and substantive guidance for the environmental review of comprehensive plans and development regulations to ensure that cumulative environmental impacts of plan decisions and subsequent implementation are analyzed and addressed.

	(b)	Consider whether additional changes should be made to the environmental review process to ensure that decisions made as part of the adoption of a comprehensive plan and development regulations, that have been subject to environmental review, are not subject to duplicative review during the project review.

(2)	Local Project Review. Establish optional minimum standards for local government administrative hearings in order to make the local government process more thorough and consistent. This is seen as a necessary prerequisite to further consideration of having shoreline permit appeals heard on the record rather than de novo.

(3)	120-day Project Review Time Limit. Designate an entity to study the impacts of the 120-day project review time limit in order to make a recommendation to the legislature and the governor prior to June 30, 2000. The 120-day time limit, originally due to expire in 1998, was extended for two years. The study should examine, among other issues, whether local governments are meeting the timelines, whether the timelines should be modified to recognize the complexity of projects, and whether sanctions for failure to meet the deadlines would be appropriate.

(4)	Coordinated State Permit Process.

	(a)	Extend the permit assistance center.

	(b)	Consider a pilot project for the integration of state permit requirements into a single permit, such as consolidating Joint Aquatic Resource Permit Application (JARPA) permits into a single permit. The idea of a consolidated state and local permit should also be considered through an appropriate pilot program.

(5)	Funding. Develop a consolidated land use code approach that provides sufficient funding to perform adequate environmental review at the planning stage, in order to reduce duplicative environmental review at the project review stage.

(6)	SEPA. Further consideration should be given to resolving the key issues that divide stakeholders over the future of SEPA. Some of the issues that deserve further consideration are: