CHANCES OF SUCCESS IN ENVIRONMENTAL APPEALS OF PDS PERMITS ARE SLIM.  CHECK THE STATISTICS!

The State Environmental Policy Act (“SEPA”) may be Washington's most powerful legal tool for protecting the environment. Among other things, the law requires all state and local governments to:

"Utilize a systematic, interdisciplinary approach which will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment,” and

Ensure that "environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations...."

RCW 43.21C.030.

SEPA establishes a process for evaluating the reasonably foreseeable environmental consequences of proposed construction projects. Projects typically are required to produce an environmental impact statement (“EIS”) by the project applicant. 27 WAC 197–11–315, –330 (“An EIS is required for proposals for legislation and other major actions significantly affecting the quality of the environment.”). A SEPA official (here, Snohomish County Planning & Development Services [“PDS”]) will then determine if this is adequate.

Not all projects require an EIS. A "determination of non-significance" (“DNS”) is the written decision by the responsible official of the lead agency (here, PDS) that a proposal is not likely to have a significant adverse environmental impact, and therefore an EIS is not required. WACs 197-11-310, 197-11-340. The DNS form is contained in WAC 197-11-970. This determination is based on an environmental checklist prepared by the project applicant. 27 WAC 197–11–315, –330. If the checklist reveals that a project will not have significant impacts, the Wa. State Dept. of Ecology issues a DNS and the environmental review is over, allowing the project to proceed. WAC 197–11–340. Speculative or insignificant impacts similarly do not require an EIS. WAC 197-11-408. An alleged impact addressed in an existing comprehensive plan or development regulation does not require a new EIS. RCW 43.21C.240.

There are only two reasons to overturn a DNS/EIS: (1) there are unmitigated probable significant adverse environmental impacts; or (2) the SEPA responsible official (here, PDS) has not undertaken an adequate review of environmental factors as required by SEPA regulations. These are the only two grounds by which one can bring a SEPA appeal to a development project permit issued by PDS.

Searching “PDS” and “SEPA” or “SEPA” and “appeal” together yields 256 results. 71 of these results actually dealt with SEPA appeals, i.e., since 1994, there have been 71 SEPA appeals. Of those appeals, 51 were denied, 14 were granted, and 8 were granted in part, denied in part.

It should be noted that the terms “Granted” and “Granted in Part” do not necessarily mean a scrapping of the development project. Instead, these determinations mean that the Hearing Examiner remands back to PDS to make modifications to the DNS or provide for a limited EIS consistent with the Examiner’s opinion that did not exist previously. While these modifications and processes are always helpful, they do not necessarily protect the environment as SEPA has required. Far more often than not, the development projects survive through the issuance of a proper EIS and subsequent challenges that the EIS was inadequate either fail or are not brought.

Since May of 2014, there have been 16 SEPA appeals of PDS permits before the Snohomish County Hearing Examiner. On 15 of the 16 appeals, the Hearing Examiner had denied the appeal and found in favor of the project developer. The one appeal that was granted was only remanded back to PDS for further processing because PDS made its DNS in reliance on the Health Department, which misapprehended the development plan. In other words, no actual analysis of the environmental impact had been performed. In that particular case, the Hearing Examiner had denied a “mulligan” of the project and permitted the Bakerview project to continue. Additionally, when further SEPA appeals were made on the same Bakerview project, the Hearing Examiner denied them. In short, it is unusually rare that a hearing on a citizen’s SEPA appeal is successful. The record shows that it is the County PDS and the developer that prevails.

Would a review of procedures and standards be helpful in determining whether worthwhile changes should be set forth to protect our environment and communities?