Lead agency determination and responsibilities

The key to a successful SEPA process is accurately defining the proposal. It is necessary to define the entire proposal to determine:

• If SEPA is required.
• Agencies that have jurisdiction and/or expertise.
• Lead SEPA agency.
• Assure that all related actions are evaluated in a single document, when required (WAC 197-11-060(3)(b)).

Defining the total proposal involves the identification of all the related and interdependent pieces of the proposal. An appropriate environmental review looks at the impacts of all related activities. An example of defining an entire proposal would be a large proposal involving actions in vastly different locations, such as material being mined at one site, and then transported to and processed at another. 
 
Actions are related if they are dependent on each other — so one could not happen without the other. Related actions can also be spread over time such as the construction, operation, and closure phases of a proposal. Related actions can have a single or several proponents. For example, a private party might propose a golf course while a city is installing a water reuse system needed to serve the site. Although the golf course and water reuse system have separate proponents, since neither could proceed without the other, under SEPA they should be considered together as one proposal.

Unless specifically exempted by statute or state SEPA rules (see WAC 197-11-800 through 890), an environmental review is required for all agency actions related to proposed projects, regardless whether the applicant is from the private or public sector. These actions include:

• Providing funding
• Issuing permits
• Adopting plans, regulations, or ordinances — also called nonproject proposals

To determine whether SEPA is required, use the following steps:

1. Define the total proposal – including any interdependent parts.
2. Identify all required agency actions required for the proposal such as licenses or funding. (If there is no agency action, SEPA review is not required.)
3. Determine whether the proposal or agency action is categorically exempt.

Some proposals may not require additional environmental review if they qualify as a “planned action” under an ordinance adopted by a county or city planning development under the state Growth Management Act (GMA). In other cases, it may be possible to use existing environmental documents to meet SEPA requirements for a new proposal.

When a proponent submits an application for a new proposal, one of the first steps is determining who will be the lead SEPA agency. Usually the agency receiving the first application is responsible for determining the lead agency. The first step in determining the lead agency is defining the total proposal and identifying all necessary permits. The following criteria are listed in priority order:

• If the proposal fits any of the criteria described in WAC 197-11-938, the agency listed is lead.
• If the proponent is a non-federal government agency in Washington, that agency is lead.
• For private proposals requiring a license from a city or county, the lead agency is the city or county where the greatest portion of the project is located.
• If a city or county license is not needed, another local agency that has jurisdiction will be lead.
• If there no local agency has jurisdiction, a state agency with a license to issue will be lead, based on the priority set in WAC 197-11-936.

Any non-federal agency in Washington may be lead SEPA agency as long as all agencies with jurisdiction agree. A lead agency is not required to have jurisdiction for the proposal. Two or more agencies may become “co-lead” agencies if both agencies agree. One agency is named “nominal lead” and responsible for complying with the procedural SEPA requirements. All agencies sharing lead agency status are responsible for the completeness and accuracy of environmental documents. Federal agencies may share lead agency status with a state or local agency to produce a combined NEPA/SEPA document. This allows coordinated input into document preparation, saving time and money while ensuring the information needed to evaluate local, state, and federal permits is included.  

A city with a population under 5,000, or a county with less than 18,000 residents may transfer lead agency status for a private proposal to a state agency with a license to issue for the project. The city or county must forward the environmental checklist and other relevant information on the proposal to the state agency, along with the notification of transfer of lead agency status. The state agency cannot refuse. If more than one state agency has jurisdiction, SEPA priority determines which will be the new lead agency.

Environmental review normally starts when an environmental checklist is completed. The checklist provides information about the proposal and its probable environmental impacts. The lead agency is responsible for reviewing the environmental checklist, permit applications, and any additional information to determine any likely significant adverse environmental impacts and identify potential mitigation. Early consultations with other agencies, tribal governments, and the public can help identify potential impacts and possible mitigation

Cities and counties planning development under GMA should complete project review and issue a notice of decision within 120 days of their notice of completeness. A threshold determination must be issued early enough to ensure the SEPA process has been completed before a notice of decision is issued. All other state and local agencies must issue a threshold determination (determination of significance or determination of nonsignificance) within 90 days of receiving a complete application.

Environmental checklist

The environmental checklist is a standard form used by all agencies to obtain information about a proposal. The checklist was designed to be as generic as possible to ensure it would be applicable to every type of proposal. Checklist items are not weighted and the mention of one or more adverse impacts does not necessarily mean they are significant.

The checklist includes questions about the proposal, its location, possible future activities, and questions about potential impacts on different environmental elements. The lead SEPA agency may choose to fill out the checklist or may require the applicant to complete it. Having an applicant complete the checklist helps them to examine their proposal from an environmental perspective and they may be motivated to make improvements. If the applicant completes the checklist, the lead agency must review the answers and make corrections and/or additions, if appropriate.

A SEPA “threshold determination” is a formal agency decision on whether a proposal is likely to result in significant adverse environmental impacts for which mitigation cannot be easily identified. 

Under SEPA, "significant" means a "reasonable likelihood of more than a moderate adverse impact on environmental quality.” The term is often non-quantifiable but involves the physical setting as well as the magnitude and duration of the impact. In determining significance under SEPA rules, the beneficial aspects of a proposal must not be used to balance adverse impacts.
 
In evaluating a proposal, the lead agency reviews the environmental checklist and other information. The agency considers comments received from the public or other agencies during public meetings, consultations, notices of application, and pre-threshold meetings.

Likely adverse impacts are identified and potential mitigation taken into account — particularly actions already required under development and permit regulations. The responsible official decides whether there are any likely significant adverse environmental impacts that have not been adequately addressed.
 
The agency weighs the severity and likelihood of the impact occurring. An impact may be significant if its magnitude would be severe, even if the likelihood is low.

To determine if a proposal will have a significant impact, the responsible official may consider a number of marginal impacts taken together can result in a significant impact. Even one significant impact is sufficient to require an environmental impact statement.

If significant impacts are likely, the agency issues a determination of significance (DS) and starts the environmental impact statement process.

If there are no likely significant adverse environmental impacts, the agency issues a determination of nonsignificance (DNS).

Mitigation is the avoidance, minimization, rectification, compensation, reduction, or elimination of adverse impacts to the built and natural elements of the environment. Mitigation may also involve monitoring and a contingency plan for correcting problems if they occur.

When considering mitigation measures, the lead SEPA agency should review the environmental checklist and other information, including consultations with other agencies. Mitigation required under existing local, state, and federal rules may be sufficient to eliminate any adverse impacts — or even deny the proposal without using SEPA authority to avoid, minimize, or compensate for probable impacts.
 
SEPA substantive authority can be applied to require additional mitigation, based on a proposal's identified potential adverse impacts and an agency’s adopted SEPA procedures. Mitigation conditions must be reasonable and capable of being accomplished. It may be possible to work cooperatively with the proponent to make changes that will reduce and eliminate significant adverse impacts. Voluntary mitigation can exceed the level regulatory requirements and produce a much improved, more desirable project. Mitigation conditions must be included in the permit, license or other approval to be binding.

A determination of nonsignificance (DNS) is issued when the responsible official has determined a proposal is unlikely to have significant adverse environmental impacts, or mitigation has been identified that will reduce impacts to a nonsignificant level. The DNS may or may not require a public comment period and circulation to other agencies. If the lead agency is a GMA city or county, there are specific restrictions under the Local Project Review Act when a DNS can be issued during the “integrated review process.” 

Mitigated DNS

SEPA was designed to reduce or eliminate environmental impacts. If significant impacts are identified that require an EIS be prepared, the applicant can reduce them by making changes to a proposal or an agency can require mitigation as a condition of approving the project. When changes to the proposal or mitigation measures are identified that will reduce the identified significant adverse impacts to a nonsignificant level, a “mitigated DNS” is issued in lieu of a Determination of Significance and an EIS. SEPA substantive authority can also reduce or eliminate adverse environmental impacts that may be less than “significant."

The lead SEPA agency must consider all comments received and may:

• Determine the comments do not warrant additional review and retain the Determination of Nonsignificance (DNS).
• Decide more information should be added to the DNS and issue a modified DNS. A modified DNS may include revised information, additional mitigation measures, and proposal changes.
• Withdraw the DNS, conduct additional review, and issue a new SEPA document.

Under SEPA, the lead agency must consider all comments on a DNS, but there is no requirement to respond to the comments.  The lead agency may then choose to retain the DNS, issue a revised DNS, or — if significant adverse impacts have been identified — they may withdraw the DNS and issue a determination of significance (DS).