§1.7 CONSIDERING AND MITIGATING PROJECT IMPACTS
SEPA requires consideration of the "cumulative impacts" of a project in addition to its direct and indirect impacts. WAC 197-11-060(4), -792(2)(c)(iii). In addition to providing a procedural framework for evaluating the potential adverse environmental impacts of proposed projects, SEPA provides the permitting jurisdiction with broad substantive authority to regulate them. Analysis of cumulative impacts and the framework for evaluating them are discussed below.
(1) Cumulative impacts analysis
SEPA requires consideration of the "cumulative impacts" of a project in addition to its direct and indirect impacts. WAC 197-11-060(4); see WAC 197-11-792(2)(c)(iii). Unfortunately, the term "cumulative impacts" is not defined in either the SEPA statute or the SEPA rules. Analysis of the cumulative impacts of a project under SEPA could certainly be wide ranging if it required consideration of the impact on the environment of prior or otherwise unrelated development together with the impact of the proposed project.
Although such an expansive future cumulative impacts analysis has long been the standard under NEPA, SEPA's federal counterpart, see 40 C.F.R. §1508.7, Washington courts have generally applied a far more narrow standard, holding that analysis of cumulative impacts is required only in situations in which one or more future projects are dependent upon completion of the proposed project. Boehm v. City of Vancouver, 111 Wn. App. 711, 720, 47 P.3d 137 (2002) (holding cumulative impact analysis of project traffic was not required for proposed addition of gas station to existing grocery store in the absence of planned future development); see also Gebbers v. Okanogan Cnty. Pub. Util. Dist. No. 1, 144 Wn. App. 371, 386, 183 P.3d 324, review denied, 165 Wn.2d 1004 (2008) (holding cumulative impact analysis of rebuilding an existing transmission line was not required when such rebuilding was not necessary to accomplish construction of new transmission line project under consideration). Rather than looking retrospectively at the impact of prior development taken together with the proposed project and any reasonably foreseeable future projects, as would be the case under a NEPA cumulative impacts analysis, SEPA cumulative impacts analysis has generally looked prospectively to determine whether the project at issue will "facilitate future action that will result in additional impacts." Boehm, 111 Wn. App. at 720 (citations omitted).
Applying these principles, even the cumulative impacts of a multiphase project need not be analyzed unless development of a later phase of the project is dependent upon some aspect or infrastructure associated with the first, such as a common access road or water system. Id. However, courts have upheld the use of cumulative impacts analysis to require SEPA mitigation or additional environmental review when a proposed project will impact already failed or failing elements of public infrastructure. City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17, 252 P.3d 382 (2011) (determining that traffic mitigation payments could be required under SEPA for the "cumulative" traffic impact of a proposed plat when traffic from prior unrelated developments combined with the proposed plat resulted in failing levels of service at certain intersections); Lanze G. Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408, 424, 225 P.3d 448 (upholding decision requiring an EIS for evaluation and mitigation of fire danger where a proposed PUD would impact already limited regional fire evacuation routes), review denied, 169 Wn.2d 1014 (2010).
| Practice Tip: | Stay abreast of legal developments resulting from DOE's decision to evaluate the cumulative global impacts of the Gateway Pacific Terminal bulk export facility in Whatcom County See Dep't of Ecology, Environmental Review Gateway Pacific Terminal at Cherry Point Proposal, http://www.ecy.wa.gov/geographic/gatewaypacific/ (last visited May 6, 2016) (describing scope and extent of DOE SEPA review for the Gateway Pacific Terminal project). Although DOE has indicated the scope of SEPA review for the Gateway Pacific Terminal project is unique, it seems likely that the SEPA process employed for evaluation of cumulative impacts for the Gateway Pacific Terminal project will be applied to other types of projects in the future. |
| Caveat: | The argument has been made that the court decision in Town & Country, 161 Wn. App. 17, using future traffic as a basis for present mitigation, reflects a departure from the "cumulative impact" analysis in cases such as Boehm, 111 Wn. App. 711, and SEAPC v. Cammack II Orchards, 49 Wn. App. 609, 744 P.2d 1101(1987), that cumulative impact is limited to impacts directly related to the project in question. The argument misses the point that in Town & Country Federal Way had identified the scope of future use to establish a pro-rata share of specific facility costs to be assigned to each use contributing to the demand. 161 Wn. App. at 27. Town & Country should be limited to that fact pattern, because the Town & Countrycourt did not look to all other potential traffic outside the adopted facility plan and did not authorize a wholesale departure from the limited cumulative impact analysis discussed in Boehmand SEAPC,that evaluated impacts must be tied to the project under review. |
(2) Use of SEPA substantive authority to condition or deny projects
The SEPA statute expressly allows the permitting jurisdiction to impose conditions on a project to mitigate specific adverse environmental impacts identified during the course of project SEPA review or to deny the project if adverse impacts cannot be mitigated below the required significance threshold. RCW 43.21C.060; WAC 197-11-660(1).
To exercise SEPA substantive authority to deny a project, the permitting jurisdiction must "find that: (1) The proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement...; and (2) reasonable mitigation measures are insufficient to mitigate the identified impact." RCW 43.21C.060; see also WAC 197-11-660(1)(f). When the EIS or SEIS identifies measures adequate to mitigate a project's adverse impacts, it is error for a permitting jurisdiction to exercise SEPA substantive authority to deny a project on the basis of "generalized complaints from displeased citizens. Maranantha Mining., Inc. v. Pierce Cnty., 59 Wn. App. 795, 804, 801 P.2d 985 (1990); Anderson v. Pierce Cnty., 86 Wn. App. 290, 305, 936 P.2d 432 (1997). However, a project may be denied through the proper exercise of SEPA substantive authority even if the proposed land use is permitted in the subject zone. Donwood, Inc. v. Spokane Cnty., 90 Wn. App. 389, 957 P.2d 775 (1998).
The permitting jurisdiction's exercise of SEPA substantive authority to condition or deny a project under RCW 43.21C.060 is also subject to the limitations detailed below.
(a) Must be based on the permitting jurisdiction's properly adopted SEPA policies
As a...
