Most categorical exemptions use size criteria to determine if a proposal is exempt. The SEPA rules allow cities and counties to raise the exemption limit for minor new construction to better accommodate needs in their jurisdiction. The exemptions may be raised up to the maximum specified in the SEPA rules in WAC 197-11-800(1)(d).
For example, cities and counties may choose to exempt residential developments at any level between four and 30 dwelling units in the urban growth area. The exemption for commercial buildings can range between 4,000 and 30,000 square feet. These "flexible thresholds" must be designated through ordinance or resolution by the city or county. If this has not been done, the minimum levels found in WAC 197-11-800(1)(b) apply.
The exemption levels set by a city or county also will apply when an agency other than the county or city is lead agency for projects in the area. A state agency or special district may need to consult with a county or city to identify the adopted exemption level for a particular area.
Requirements for adopting flexible thresholds
Flexibility requires documentation
Several criteria must be met for a county or city to adopt increased flexible-exemption thresholds. Most importantly, to protect against impacts to the environment, the local government must provide documentation demonstrating that requirements for environmental analysis, protection, and mitigation are met by other regulations. They must also disclose any loss of notice or comment opportunities for future permitting decisions as a result of threshold flexibility.
The required documentation includes the types, sizes, and locations of projects proposed for new exemption levels. For example, the exemption could be for a project of residential development of up to 30 homes within the urban-growth area. Impacts to the entire list of SEPA’s "elements of the environment" must be considered. The proposal should also list the applicable authorities and regulations and describe how much the regulations reduce impacts on each element of the environment for each project type, size, and location.
We also require documentation of adequate protections for cultural and historic resources when exemption levels are raised. A local ordinance or resolution that addresses cultural resources must include, at minimum:
- Use of available data and other project-level review tools, such as inventories and predictive models provided by the Department of Archeology and Historic Preservation, other agencies, and tribal governments.
- Planning and permitting processes that ensure compliance with applicable cultural-resource state laws, including Chapters 27.44, 27.53, 68.50 and 68.50 RCW.
- Local development regulations that include a preproject cultural-resource review, where warranted, and standard inadvertent discovery plan for all projects.
The adoption of SEPA procedures is categorically exempt in WAC 197-11-800(19)(c). Alternatively, the adoption of increased flexible exemption thresholds requires a 60-day notification to affected tribes, agencies with expertise, affected jurisdictions, our agency, and the public, and provide an opportunity for comment. Please submit these notifications to us via email to SEPAhelp@ecy.wa.gov.
In addition, a consultation is required with the Washington Department of Transportation on impacts to state-owned transportation facilities. The result of this consultation must be documented in the adopting ordinance or resolution and include whether mitigation is necessary for impacts to state-owned transportation facilities. Requests for consultation should be submitted to your WSDOT Regional Development Services office.