State v. Burch

No. 1389-I (Wash. Ct. App. February 1, 1973)

The court modifies its former opinion that the state Environmental Policy Act did not apply in a highway condemnation case. The modification clarifies that plaintiffs' request for a detailed environmental statement was not timely made, and the statement is thus not required. The decision itself is not changed. (See 2 ELR 20075.)

Counsel for Plaintiffs
Paul Sinnit
Eisenhower, Carlson, Newland, Rehr & Sinnit
Eleventh Floor, Puget Sound Bank Building
Tacoma, Washington 98402

Counsel for Defendant
Slade Gorton Attorney General
Temple of Justice Building
Olympia, Washington 98504

[3 ELR 20290]

Farris, J.

IT IS HEREBY ORDERED that the opinion of this court in the above cause, reported in 7 Wn. App. 657, 501 P.2d 1239 (1972), be changed as follows:

On page 660 (2 ELR 20076) following the third full paragraph ending with the sentence "We affirm on other grounds" delete the remainder of the opinion and insert the following language:

The two legislative acts have added a new dimension to proceedings of this type. The question before the trial court was whether they applied in the instant proceeding and that question turned on the effective date of RCW 47.04.110 — .130 as to the "report and the stage of the proceedings as to the "detailed statement" required by the State Environmental Policy Act.

The act which declared state policy regarding the environmental impact of construction or reconstruction of highways specifically provided when the report on environmental impact would be required. RCW 47.04.120 provides in part:

Whenever the department of highways determines that a state highway project will significantly affect the quality of human environment, and in every case when a state highway is to be constructed in a new location or a state highway reconstruction project will require additional right of way, the department of highways, prior to holding the first public hearing relating to the location or design of the highway, shall prepare a report on the environmental impact which may reasonably be expected to occur as a result of such constructions: Provided, That if in respect to any project on which one or more hearings have occurred prior to August 9, 1971, the department of highways shall prepare the environmental report prior to conducting the next public hearing.

There were no public hearings on this project after August 9, 1971, the effective date of RCW 47.04.120. If there had been, the report would have been required. See Brooks v. Volpe, 460 F.2d 1193 (9th Cir. 1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971). We also find that the request for the "detailed statement" required by the State Environmental Policy Act of 1971 was not timely made.

Affirmed.