SEPA Guidance on Categorical Exemptions

Some types of projects and some agency actions have been exempted from the requirements of SEPA by the Legislature. These “statutory exemptions” are contained in state law, Chapter 43.21C RCW. The table below summarizes all of the statutory exemptions contained in the SEPA statute as of 2017. Please check the statute for any exemptions adopted after this date. Please remember that this is a summary and the entire exemption must be reviewed before determining if a proposal is exempt from SEPA review.
 

Statutory Exemption	RCW
Water right for fifty cubic feet of water per second or less for irrigation projects irrigation projects decisions	43.21C.035
Forest practices Class I, II, and III	43.21C.037
School closures	43.21C.038
Air operating permits	43.21C.0381
Watershed restoration projects—Fish habitat enhancement projects	43.21C.0382
Waste discharge permits for existing discharges and certain construction stormwater permits	43.21C.0383
Wireless services facilities (cell towers)	43.21C.0384
Certain actions during state of emergency	43.21C.210
City or town incorporation, consolidation, disincorporation, or annexation of all of a city/town by or of another city/town	43.21C.220 43.21C.222 43.21C.225 43.21C.227
Infill development	43.21C.229
House Finance Commission plans	43.21C.230
Forest Practices Board emergency rules	43.21C.250
Conservation easements, road maintenance & abandonment, Timber harvest schedules involving east-side clear cuts	43.21C.260
Unfinished nuclear power projects	43.21C.400
Battery charging and exchange station installation	43.21C.410
Certain fish protection standards	43.21C.430
Nonproject actions – certain local development regulations	43.21C.450
Categorical exemption for structurally deficient bridges	43.21C.470 43.21C.480

In addition to the statutory exemptions, the Legislature directed rulemaking for types of projects or agency actions that are not subject to SEPA review because the size or type of the activity is unlikely to cause a significant adverse environmental impact. (Refer to SEPA Rules Part Nine.)
 
Examples of categorically exempt minor projects include construction of four dwelling units or less, commercial buildings with 4,000 square feet or less of gross floor area and no more than 20 parking spaces, and water and sewer facilities related to lines twelve inches or less in diameter. Examples of specific types of agency decisions that are exempt include short plat subdivisions, forest practice class I,II, and III, public property transactions, and business licenses.
 
Many exemptions for minor new construction or minor land use decisions do not apply when:

• A rezone is involved;
• A license is needed for emissions to air or a discharge to water;  or
• The proposal involves work wholly or partly on lands covered by water.

Restrictions are contained in WAC 197-11-305. A proposal that would normally be exempt from SEPA review under Part Nine of the SEPA Rules is not exempt if any of the following apply.

• The proposal is a segment of a proposal that includes a series of related actions, some of which are exempt and some of which are not. For example, the construction of a single family home is usually exempt from SEPA review.  However, the single family exemption does not apply when a Class IV forest practice application is required. Since the SEPA statute requires Class IV applications to be evaluated under SEPA, the entire proposal requires SEPA review.
• The proposal includes a series of exempt actions and the lead agency’s responsible official determines that together the actions may have a probable significant adverse environmental impact.
• The city or county where the proposal is located has eliminated the categorical exemption for proposals located within a critical area (see section on Categorical Exemptions in Critical Areas).

To determine if a proposal is exempt from SEPA, review the rule exemptions in Part Nine of the SEPA Rules, the statutory exemptions in SEPA, and any local exemptions and exceptions that may apply. If the proposal meets the criteria for a categorical exemption in either the SEPA Rules or the SEPA statute, no further SEPA review or documentation is required.  Remember to watch for “exceptions” and consider the restrictions in WAC 197-11-305.

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.

Required notification

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.

Cities and counties are required to designate critical areas under the Growth Management Act (GMA). Critical areas are wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. To ensure adequate environmental review of development within these areas, cities and counties may also designate in their SEPA procedures categorical exemptions that do not apply within each critical area. (Refer to WAC 197-11-908 for the list of exemptions that can be eliminated.)

• Documenting whether the proposal is consistent with the requirements of the critical areas ordinance;
• Evaluating any significant adverse environmental impacts not adequately addressed by the GMA planning documents and development regulations; and
• Preparing a threshold determination, and an EIS if necessary.  (WAC 197-11-908)

An emergency exemption can be granted by a lead agency when:

1. An action is needed to avoid an imminent threat to public health or safety, public or private property, or to prevent serious environmental degradation; AND
2. There is not adequate time to complete SEPA procedures.  Poor planning by the proponent should not constitute an emergency for the purposes of a SEPA exemption.

• The total proposal must be identified before the categorical exemptions can be applied. “Total proposal” means all interdependent parts of a proposal, including all proposed phases. This will limit the piecemeal review of projects, and allow an evaluation of all parts of a proposal. The SEPA Rules do allow phased review under certain circumstances, as defined in WAC 197-11-060(5).
• The SEPA Rules do not require any documentation when a proposal does not meet the definition of an action, or is categorically exempt. However, we recommend the placement of a note in the file or on the permit application (if applicable) to indicate that SEPA compliance had been satisfied or did not apply.
• The Dept. of Ecology considers the exemption for additions or modifications to buildings within WAC 197-11-800(2)(e) to apply to any addition where the existing floor area plus the proposed addition has a total area less than the square footage exempted under WAC 197-11- 800(1) for minor new construction. In other words, SEPA is required for any addition when the total square footage of the entire facility (old plus new) exceeds the threshold adopted by the local jurisdiction.  This can include a multi-structure facility.
• If a building is not exempt at the time of construction, neither would any additions to the building be exempt. WAC 197-11-800(3) does exempt minor repair, remodeling (not including additions), and maintenance activities which would not change the use of the building and that does not occur on lands covered by water.