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AGLO 1976 No. 50 - August 06, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

CITIES ‑- TOWNS ‑- ANNEXATION ‑- APPLICABILITY OF ENVIRONMENTAL POLICY ACT

Applicability of state environmental policy act to annexation by cities, towns and special districts.

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                                                                  August 6, 1976

Honorable Robert E. Schillberg
Prosecuting Attorney
Snohomish County Court House
Everett, Washington 98201                                                                                                               Cite as:  AGLO 1976 No. 50

Dear Sir:

            By letter previously acknowledged you requested our opinion on the following question:

            "Will the creation of, or annexation to, cities, towns, and special districts ever constitute 'major actions significantly affecting the quality of the environment' within the meaning of RCW 43.21C.030(2)(c) so as to trigger the 'detailed statement' requirement of that section?"

            We answer the foregoing question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your question, of course, basically involves the applicability of the state environmental policy act of 1971 (SEPA) to municipal annexations.  The issue raised is whether such actions may constitute "major actions significantly affecting the quality of the environment" within the meaning of RCW 43.21C.030(2)(c) so as to trigger the requirements of that section with regard to the preparation of a "detailed environmental impact statement."

            In posing that question you have provided us with the following background basis for its submission:

            "We note as background to this question seemingly inconsistent administrative and judicial interpretations.  The state Council on Environmental Policy in adopting SEPA guidelines on December 12, 1975, pursuant to RCW 43.21C.110, explicitly included 'creation of, or annexation to, any city, town or district' within its restrictive definition of 'action.'   [[Orig. Op. Page 2]] WAC 197-10-040(2)(c)(iv).  Since such creations or annexations are not the subject of any exemptions contained in WAC 197-10-170, 197-10-175 and 197-10-180 (with the partial exception of LID formations ‑see WAC 197-10-170(20)), they would by definition always constitute major actions necessitating a threshold determination of environmental impact.  WAC 197-10-040(24); 197-10-300.

            "In contrast with the above, Division One, of the state Court of Appeals several months after adoption of the SEPA guidelines appears to hold inCarpenter v. Island County, 14 Wn.App. 843 (Feb. 2, 1976), that an annexation to (and by analogy, the creation of) municipal corporations can never constitute major actions significantly affecting the quality of the environment.  Although the court inCarpenter was concerned with a specific sewer district annexation, its reasoning would seem of general applicability."

            There is, however, in our judgment, a simple explanation for the apparent conflict which you have thus described.  Although it is true that the decision of the court of appeals in Carpenter v. Island County, supra, was not rendered until nearly two months after the adoption of the administrative guidelines by the state council on environmental policy to which you have also referred, the relevant facts giving rise to theCarpenter case all occurred long before December 12, 1975, when the guidelines were formally promulgated.  As a matter of fact, all of the occurrences giving rise to the litigation apparently occurred sometime during 1972.  In addition, the trial court's judgment from which the Carpenter case was appealed was entered on May 31, 1974 ‑ also long before the state council's SEPA guidelines were adopted.  Thus, the court's indication in that case that a municipal annexation was not to be regarded as a "major action significantly affecting the quality of the environment" within the meaning of RCW 43.21C.030(2)(c), supra, should only be viewed as having bearing upon those annexations which occurred prior to the effective date of the subsequently adopted administrative guidelines.  Cf.,Norway Hill v. King County Council, 87 Wn.2d 267,    P.2d   , (1976), at page 277.

             [[Orig. Op. Page 3]]

            In the case of annexations occurring on or after that date, on the other hand, the official position of this office must be that the provisions of WAC 197-10-040 et seq., to which you have referred, are presumptively valid until and unless ruled otherwise by a court of competent jurisdiction; and therefore, to the extent provided for by the guidelines contained in those regulations, a municipal annexation is now to be regarded as an action to which the provisions of RCW 43.21C.030(2)(c),supra, may be applicable.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

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