SEPA guidance on appeal process

SEPA appeals

SEPA provides a process for citizens and others to challenge both procedural and substantive decisions:

• Procedural appeals - include the appeal of a threshold determination — both determinations of significance (DS) and nonsignificance (DNS) — and of the adequacy of a final environmental impact statement (EIS).
• Substantive appeals - are challenges of an agency’s use (or failure to use) SEPA substantive authority to condition or deny a proposal.

Appeals may be heard at two levels:

• Administrative appeals, heard by agencies.
• Judicial appeals, heard by courts when the administrative appeal process is either not available or has been exhausted.

Administrative appeals, when offered, provide the first opportunity to appeal a SEPA decision. These are normally used before the judicial appeal process. However, not all agencies provide an administrative appeal process, or they may provide for a substantive appeal or a procedural appeal but not both. In this case, the first appeal may be a judicial appeal.
 
For more information on the SEPA appeal process, refer to RCW 43.21C.060, 075, and 080; and WAC 197-11-680.  Also refer to the state Local Project Review Act since it contains provisions relating to SEPA administrative appeals. Anyone interested in appealing a SEPA procedural issue should contact the lead agency to determine what administrative appeal, if any, will be allowed. Questions about the availability of administrative appeals for substantive decisions should be directed to the agency making the decision.

Administrative appeals

Each agency must decide whether or not to offer administrative appeals. If an agency offers an administrative appeal, the agency must specify its appeal procedure by ordinance, resolution, or rule.

What can be appealed

An agency may provide appeals of some, but not all, reviewable SEPA decisions. The only decisions that may be appealed at the agency level are a final threshold determination or EIS (including a final supplemental EIS), and SEPA substantive decisions. Other decisions, for example the applicability of categorical exemptions, may only be appealed to the courts.
 
A DS, DNS, or EIS are each subject to a single administrative appeal proceeding. Successive reviews within the same agency are not allowed. For example, a hearing examiner’s decision on the appeal of a DS cannot be further reviewed by the local legislative body. Further consideration is limited to review by a court as part of a judicial appeal.
 
Procedural and substantive SEPA appeals in most instances must be combined with a hearing or appeal on the underlying governmental action (such as the approval or denial of a permit). If a SEPA appeal is held prior to the agency making a decision on the underlying action, it must be heard at a proceeding where the person(s) deciding the appeal will also be considering what action to take on the underlying action.
 
SEPA appeals that do not have to be consolidated with a hearing or appeal on the underlying action are related to:

• Determinations of significance
• Agency proposals
• Nonproject actions
• Appeals of a substantive decision to local legislative bodies

A local agency must also decide whether or not to allow an appeal of a non-elected official's decision to use SEPA substantive authority to condition or deny a proposal. If a local agency chooses not to allow an appeal to a local legislative body, the agency must clearly state that decision in its procedures.

Judicial appeals

Judicial appeals are heard in court. A judicial appeal in most instances must be of the underlying governmental action (permit decision, adoption of a regulation, etc.) and the SEPA document (DNS or final EIS). If the agency allows a SEPA administrative appeal, it must be used prior to initiating judicial review.
 
The time period for filing a judicial appeal will depend on several factors:

• Time limit on the underlying governmental action (issuance of permit, adoption of a plan, etc.). If there is a time limit established by statute or ordinance for appealing the underlying governmental action, then appeals raising SEPA issues must be filed within that time period. 
• Time limit when publication of notice of action taken. If there is no time limit for appealing the underlying governmental action, the notice of action provisions may be used to establish a 21-day appeal period.
• If there is no time limit for appealing the underlying governmental action and the notice of action is not used, then SEPA does not provide a time limit for judicial appeals. However, the general statutes of limitation or the common law may still limit appeals.