§ 13.2 GENERALLY APPLICABLE STATUTES
The generally applicable statutes and ordinances, discussed briefly below as they pertain to construction projects, are the federal National Environmental Policy Act of 1969 (NEPA), as amended, 42 U.S.C. §§ 4321 -4347; the federal National Historic Preservation Act, 54 U.S.C. §§ 300101 -307108; the federal Endangered Species Act of 1973, 16 U.S.C. §§1531-1544; the Washington State Environmental Policy Act (SEPA), Chapter 43.21C RCW; the Washington state Historic Preservation Act, Chapter 27.34 RCW; and the state Growth Management Act (GMA), Chapter 36.70A RCW Separate sections will discuss the requirements of other statutes, such as the Clean Water Act, 33 U.S.C. §§ 1311 -1387; the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 -9675; and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901-6992k, on the federal side; and the Hazardous Waste Management Act, Chapter 70.105 RCW, and Washington Model Toxics Control Act, Chapter 70.105D RCW, on the state side.
(1) National Environmental Policy Act
The federal National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 -4347, and applicable regulations apply to a project on federal land within the state of Washington. See 40 C.F.R. §§ 1500.1-1508.28 for the NEPA procedural regulations generally applicable to all federal agencies; see also 7 Washington Real Property Deskbook (Environmental regulation), Chapter 1 (National Environmental Policy Act) (4th ed. 2013 & Supp. 2018). The primary agencies likely to be involved in decisions concerning a construction project on federal lands are the Bureau of Land Management (BLM), the United States Forest Service (USFS), and the U.S. Department of Interior (DOI). BLM's NEPA guidelines are contained in a handbook, National Environmental Policy Act Handbook H-1790-1 (BLM 2008), available at http://www.blm.gov/pgdata/etc/medialib/Mm/wo/Information_Resources_Management/policy Iblm_handbook.Par.24487.File.dat Ihl790-l-2008-/.pdf. The
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USFS has codified at 36 C.F.R. pt. 220 its NEPA guidelines previously contained in U.S. Forest Service, Forest Service Manual ch. 1950 (June 12, 2012), and U.S. Forest Service, Forest Service Handbook 1909.15 (Sept. 30, 2010).
NEPA does not apply to decisions by Native American tribes because of their sovereign immunity, but federal law requires the Secretary of the Interior to approve any lease of tribal trust lands and, therefore, a construction project that involves a leasing decision on tribal lands would constitute a major federal action subject to NEPA. Compare Vill. of Hotvela Traditional Elders v. Indian Health Servs., 1 F.Supp.2d 1022, 1027-28 (D. Ariz. 1997) (no language in NEPA requiring tribes to engage in NEPAreview), aff'd, 141 F.3d 1182 (9th Cir. 1998), cert, denied, 525 U.S. 1107 (1999), with Cady v. Morton, 527 F.2d 786, 793 (9th Cir. 1975) (Interior Secretary approval of coal leases on Crow Reservation in Montana was major federal action under NEPA); see also 25 U.S.C. §§ 81, 177, 396a, 415 & 2103 (requiring Secretary of Interior approval of agreements or contracts with Indian tribes).
NEPA is described as a "process" statute, not a substantive statute. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989). That is, it describes a review process but does not itself impose any standards. Id. Thus, even when significant impacts are found, if the review procedures are followed, NEPA will not prevent an agency from issuing a permit. Id. at 350 ("If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.").
The final step in the federal decision-making process is issuance of a Record of Decision (ROD). Before bringing any legal challenges to the decision, some agencies, such as BLM and USFS, have an administrative appeal process that must be exhausted. 36 C.F.R. pt. 214 (USFS); 43 C.F.R. pt. 4 (Interior Board of Land Appeals).
There is no private right of action under NEPA; enforcement of its procedures occurs only through the federal Administrative Procedure Act, 5 U.S.C. §§ 701 -706, following final agency action, whether that action is issuing a Finding of No Significant Impact, issuing a Record of Decision after an Environmental Impact Statement (EIS), or taking action without preparing an environmental assessment or EIS. N. Idaho Cmty Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008); Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988).
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(2) National Historic Preservation Act
The provisions of the National Historic Preservation Act of 1966 (NHPA), as amended, formerly codified at 16 U.S.C. §§ 470 -470x-6, were repealed and replaced in 2014 by new provisions in Title 54 U.S.C., the statute thatgoverns the National Park Service. See 54 U.S.C. §§ 300101 -307108. The sections of the former statute are now broken down into smaller discrete sections. The limited case law interpreting the original statute is still relevant because the wording is similar; therefore this section will refer to both the current section and its predecessor.
The statute establishes a National Register of Historic Places, composed of districts, sites, buildings, structures, and objects significant in American history. 54 U.S.C. § 302101; see also 16 U.S.C. § 470a(a) (1)(A) (repealed 2014). Properties that meet the criteria for National Historic Landmarks are so designated and included on the Register. 54 U.S.C. § 302102; see also 16 U.S.C. § 470a(a)(1)(B) (repealed 2014). Administration of the historic register program is delegated to the states—in Washington, by the Washington state Department of Archaeology and Historic Preservation (DAHP), http://www.dahp.wa.gov. DAHP also administers the Washington State Heritage Register and the Heritage Barn Register. See §13.2(5), below.
Both the federal and state programs emphasize that inclusion of a property on the national or state registers does not protect against, or restrict from, alteration or demolition, as long as a private owner of a registered property is using private funds and the alteration or demolition is conducted within local building regulations. The National Register is intended to be "an authoritative guide to be used by Federal, State, and local governments, private groups and citizens to identify the Nation's cultural resources and to indicate what properties should be considered for protection from destruction or impairment." 36 C.F.R. §60.2. Thus, listing private property on the National Register does not prohibit, under federal law or regulation, any actions that may otherwise be taken by a property owner with respect to the property. Id. If a project, however, involves federal or state agency action, then the actions are reviewed with the goal of preserving historic resources whenever possible.
The statute consists of "a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance." San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1093-94 (9th Cir. 2005). NHPAis described as working in parallel with NEPA: NEPA requires consideration of the environment and NHPA addresses historic sites. Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 787
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(9th Cir. 2006) (quoting United States v. 0.95 Acres of Land, 994 F.2d 696, 698 (9th Cir. 1993)). NHPA would be the primary vehicle for addressing issues concerning historic sites because NEPA has no independent requirement that an agency examine the impact that a federal action will have on historic properties separate and apart from any environmental impacts. See, e.g., N. Idaho Cmty. Action Network, 545 F.3d at 1156-57...
