May 4, 2012

Department of Ecology Adopts SEPA Rule Amendments, Effective January 28, 2013, Increasing the Levels of Certain Categorical Exemptions, as Required by 2012 Legislation

Just before adjournment, the 2012 Legislature adopted significant SEPA amendments (2ESSB 6406, Ch. 1, Laws of 2012 1st Special Session) that we reported in previous News Alerts:

Governor Acts on Bill Amending Environmental and Natural Resources Laws

Legislature Amends Important Environmental and Natural Resources Laws

A central feature of the SEPA amendments was the mandate for the Department of Ecology (Ecology) to update and increase the levels of categorical exemptions in the SEPA Rules by the end of 2012 and 2013 in two installments.

The legislation also mandated that Ecology appoint a SEPA Rulemaking Advisory Committee, representing cities, counties, business interests, environmental interests, agricultural interests, cultural resources interests, state agencies, and tribal governments, to work with Ecology in developing new rules. Ecology appointed the Committee, which included Foster Pepper attorneys Dick Settle and Pat Schneider representing business interests as member and alternate member, respectively.

The first installment of the new rules was required to be completed by the end of 2012 and to increase the existing maximum exemption levels for (with some exceptions):

  • Single-family residential developments;
  • Multifamily residential developments;
  • Agricultural structures;
  • Office, school, commercial, recreational, service, and storage buildings, including associated parking facilities;
  • Landfilling or excavation activities; and
  • Electrical facilities.

The Legislation required the new maximum exemption levels to vary for developments inside and outside of cities/urban growth areas and counties that are and are not required to plan under the Growth Management Act. The new rules also were required to update the SEPA environmental checklist to improve its efficiency but may “not include any new subjects into the scope of the checklist, including climate change and greenhouse gases.”

After six months of intensive work with the SEPA Rule-Making Advisory Committee, Ecology filed a Rule-Making Order on December 28, 2012, containing amendments of WAC 197-11-315, 800, 906, and 960, effective January 28, 2013.

The 2012 SEPA Rule Amendments increase the flexible thresholds that local governments may adopt to exempt “minor new construction” projects from SEPA review, increase the threshold for electrical facilities, and seek to improve the efficiency of the SEPA environmental checklist.

The amendments:

  • Establish separate maximum exemption thresholds for local governments in counties fully planning under the Growth Management Act and other counties.
  • Revise the process that local governments must use in adopting new SEPA “minor new construction” exemption thresholds.
  • Revise and clarify language related to the “residential”, “parking lot”, and “landfill and excavation” categories of minor new construction.
  • Increase the exemption threshold for proposed electrical facilities.
  • Provide flexibility for all lead agencies to improve the efficiency of the SEPA environmental checklist including authorization of electronic submittal of checklists and electronic signatures.

For the full text of the amendments, click here.

The Second Round of Rule-Making mandated by the 2012 legislation (2 ESSB 6404; Ch.1, Laws of 2012 1st Special Session) must be completed by December 31, 2013. Ecology and the SEPA Rule-Making Advisory Committee meet January 10, 2013 to begin the 2013 rule-making process which may include review and revision of the 2012 SEPA Rule Amendments.

View additional article: Using SEPA to Encourage Economic Development and Sustainable Communities.

Dick Settle and Pat Schneider welcome your questions, ideas and concerns about the 2012 SEPA Rule Amendments and the forthcoming 2013 SEPA rule-making process. Watch for future News Alerts as the new rules take shape. For more information, contact any attorney in our Land Use and Environmental practice groups.

Related News & Events