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So You Have an FEIS, What Next? Part 1

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What are the next steps in the process now that the FEIS is published?

Washington State Department of Ecology
Washington State Department of Ecology

Who's ready for a snore?!

It's doubtful many thought that immersing ourselves in the oh-so-exciting world of environmental review and land use & building permitting was part and parcel with Green & Gold fandom. Yet, with the long-gestating Final Environmental Impact Statement for the SoDo arena proposal [finally] upon us to digest like a Thanksgiving gorging, here we are dancing in the aisles over a report on traffic patterns and environmental mitigation. Cue up the Jock Jams and get ready to announce numbers for your starting appendices...

"LET'S GET READY TO STUUUUMMBBLLLLLLLEEEE.....!"

With this information now in our hands and, more importantly, in the Seattle City and King County Councils' hands, you're no doubt asking what's next.

Public Comment, More Information

Right off the bat, let's clear up a misconception that has been floating around for a while.

It's been reported that the FEIS will be subject to two public hearings following its release. Now, either of the councils can certainly call meetings to hear public feedback on issues whenever they like, but Washington SEPA law does not require this for the FEIS. In fact, in the law, commentary on the EIS process is only given in response to the scope of work and following the Draft EIS. Once the Final EIS is published, the environmental review is essentially* done.

Per law, the only thing required after the FEIS publication is a 7-day waiting period for any agency to take action based on or related to the findings in the FEIS.

Now, in the spirit of keeping you informed, we offer a tidbit you're not likely to care much for. You might have noticed that fun little asterisk beside "essentially" up there. A caveat of this process is that, if either council finds that there is not enough conclusive evidence in part or all of the FEIS, they can request additional environmental review.

This wouldn't negate the FEIS but would be additive and published in what's called a Supplemental EIS. The Supplemental EIS process is similar to the standard one with requested analysis, a draft supplemental EIS, a public commentary period on the draft, further analysis, and a Final Supplemental EIS. Given that this usually focuses on specific areas of concern rather than something broad, the process would take considerably less time.

That all said, with how much time and effort went into the SoDo arena FEIS, as well as a far more exhaustive scope of work than was actually required by law, it seems unlikely that they'll require more review. Still, stock food, water, and batteries for flashlights just in case.

Alright, take a moment to clear the glaze out of your eyes.

Lawsuits, Challenges, Appeals

What's that you say, lawsuits? Should anyone be concerned about lawsuits right away?

The simple answer is no.

There is a built-in appeals process to challenge SEPA review that is broken down into two levels, which we will illuminate momentarily. Appeals can be made either against procedure or against substantive decisions made using SEPA law and review. Procedural items include a threshold determination, which is the initial finding to determine whether or not an EIS is necessary to proceed with a project, and the adequacy of an FEIS. Substantive decisions are those made to set conditions on or outright deny a proposal based on SEPA review.

"I see you want to make an appeal."

Administrative Appeal

The first level in a SEPA appeal is called an Administrative Appeal. These are heard directly by the lead agency running the SEPA review; in the case of the SoDo arena proposal, this is the Seattle Departmet of Planning and Development (DPD). Both the threshold determination -- Determination of Significance (DS) or Determination of Non-Significance (DNS) -- and the FEIS are subject to individual administrative appeals, but only one each. After an appeal hearing examiner rules on an appeal, it can't be further examined at this legislative level. At that point, if still challenged, it must go to court.

The tricky thing with an admin appeal is that, in most instances, they must be combined with a hearing or appeal on an underlying governmental action. An example of such an action would be the city granting arena investor Chris Hansen the Master Use Permit for the project. If the appeal is held prior to the action, it must be heard at a meeting where the lead agency is also considering what action to take on the underlying action.

And because it's thrilling to dig just a little deeper on this, know that the city is allowed to have no more than two meetings on the underlying governmental action. Those two meetings are a single "open record hearing," where testimony and discussion are put on record, and a single "closed record appeal," where the appeal and record of the first meeting are deliberated without new evidence being presented. The decision on the appeal is arrived at during the closed record appeal. An open record hearing can be held either before a decision on governmental action has been made or to hear an appeal after one has been made.

In simple terms, the city holds a public hearing to hear pros and cons about approving a permit, then the city decides to grant the permit or not. If they do, someone can appeal that action as an administrative appeal.

Lead agencies actually have the option to not offer administrative appeals, if they so choose. One of the announcements when Mayor Ed Murray presented his timeline for the arena process was that appeals would be heard after the MUP decision, which seemed like a special exception being made to expedite the process. In addition to confirming admin appeals are available, it demonstrates that the MUP vote would have to go through first before any appeal of the decision and the FEIS could be filed.

Judicial Appeal

So, the admin appeal didn't go quite the way you hoped. What's your next option?

Well, this would be the time that things go to court. A judicial appeal must go through an administrative appeal first, if it is an available option. The time in which a judicial appeal can be filed is based on the underlying governmental action (permit approval, etc.) and a time limit established by the governmental body taking the action at the time it is taken. So, if the city council approves the MUP, they can set a specific time limit within which to hear appeals on the decision and must announce it through statute or ordinance at that time. If they don't set a specific time, an optional notice of action can legally establish a 21-day period in which to file appeals. If neither option is used, there is no legal time limit in which to file judicial appeals.

In other words, it would be quite good for them to set a window in which they can be slapped with a lawsuit that is almost assured to come from arena opposition.

How long does a judicial appeal take?

Frankly, no one knows. It all depends on when they can get a court date, as well as how long the prosecution would need to prepare their case. Judging by past lawsuits, work on the project can proceed until such time as the court tells them they can't, either through a separate injunction or a decision on the appeal.

Due to the limitation on the appeals that can be filed, no one can use the process to try to delay a proposal. As the DS was issued to kick off the EIS process, it's unlikely that it would be appealed. That leaves a single appeal on the FEIS after a decision has been made on the MUP. Seems far less litigious than you thought, right?

So, Then What?

At the risk of burning your eyes in a fiery hibachi of a longer article, we'll cover the next steps in Part 2. Here are your merit badges. Single file, no pushing on your way out the door.