Washington Department of Ecology Issues New Community Engagement Guidance

In early May, the Washington Department of Ecology (Ecology) issued an updated and expanded Community Engagement Plan, building on a prior plan intended to satisfy the 2021 Healthy Environment for All Act (HEAL Act) community engagement requirements. The HEAL Act sets out a framework for certain state agencies to incorporate environmental justice (EJ) considerations and planning into covered agency actions. 

Key Takeaways

• What Will Be Required: The updated Community Engagement Plan establishes standards for community engagement across many Ecology activities, including rulemaking, the administration of grant and loan programs, large capital projects, grants, and loan awards. It does not expressly create new obligations for regulated entities, including in the permitting context, but may affect timelines, engagement expectations, and documentation for Ecology-led actions.
• Next Steps: Parties with projects before Ecology should evaluate whether their agency-facing activities may trigger enhanced community engagement.

Background

The HEAL Act, which aims to “reduc[e] environmental and health disparities and improv[e] the health of all Washington state residents,” mandated a coordinated approach to EJ between “the departments of ecology, health, natural resources, commerce, agriculture, and transportation,” as well as the Puget Sound Partnership. In addition to establishing an interagency work group, the HEAL Act required these agencies to create and adopt “community engagement plans” by July 1, 2022. Covered agencies were required to “describe how [they] will engage with overburdened communities and vulnerable populations as [they] evaluate[] new and existing activities and programs.”

Ecology initially adopted a “provisional draft plan,” called the Community Engagement Guide for HEAL Act Implementation, in July 2022 (2022 Plan). The new Community Engagement Plan updates and expands upon the 2022 Plan. Ecology intends for the Community Engagement Plan to serve as a “living document” that it will maintain and periodically update to incorporate lessons learned through community and Tribal engagement, to ensure consistency with any new legal and regulatory requirements.

What the Updated Community Engagement Plan Does

The Community Engagement Plan provides a framework for Ecology’s engagement with overburdened and vulnerable communities. It is divided into three parts:

• Part One provides background and context for the Community Engagement Plan, including a description of relevant legal authorities and key EJ concepts.
• Part Two explains how Ecology should implement the Community Engagement Plan at the programmatic and project levels.
• Part Three provides guidance on community engagement for specific projects, outlining best practices for scoping community engagement and planning, implementing, and evaluating community engagement activities.

The Community Engagement Plan also provides an appendix of definitions and identifies resources available to the public on request. These resources include community engagement scoping worksheets, a project community engagement plan worksheet, a language access planning worksheet, and engagement evaluation tools.

Major Changes from the 2022 Plan

The updated Community Engagement Plan provides more detail than the 2022 Plan, supporting Ecology’s goal of operationalizing its community engagement work across programs and projects. Key changes include:

• Defining implementation roles. The Community Engagement Plan assigns responsibilities to Ecology environmental programs, the Office of Equity and Environmental Justice, communication managers, EJ planners, outreach specialists, supervisors, managers, and program managers.
• Providing guidance for programmatic and project-level implementation. The Community Engagement Plan directs Ecology programs to develop program-specific community engagement plans or strategies and to apply the Plan’s process guidance and best practices to project-specific community engagement activities. The 2022 Plan did not provide a detailed project-level implementation framework.
• Distinguishing the Community Engagement Plan’s application to projects or actions that are covered by the HEAL Act and to other Ecology actions. The Community Engagement Plan distinguishes between HEAL Act compliance projects—those that are subject to the HEAL Act—and other Ecology activities. Ecology intends to follow the Community Engagement Plan’s agency standards when undertaking actions required by the HEAL Act, including EJ assessments of significant agency actions, such as rulemakings and the administration of grant programs; engagement with vulnerable and overburdened communities on Ecology’s budget equity analyses; and the development of HEAL Act implementation metrics. For all other Ecology activities that may involve engagement with overburdened communities and vulnerable populations, Ecology staff may use discretion in deciding whether to adhere to the Community Engagement Plan’s guidance. Examples of these types of activities identified in the Community Engagement Plan include public comment periods under the State Environmental Policy Act, environmental education, advisory groups, administration or updates to the grant and loan program, spill prevention and response, environmental monitoring, and water rights adjudications. Though the Community Engagement Plan does not expressly mention permitting actions, Ecology could apply concepts from the Community Engagement Plan in those contexts.
• Creating a new scoping process. The Community Engagement Plan directs Ecology staff working on specific projects to determine the appropriate level of engagement based on an assessment of the project’s potential impacts to overburdened communities and vulnerable populations and the opportunity for community members to influence the project.
• Establishing an expanded framework for evaluating Ecology’s community engagement efforts. The Plan recommends that Ecology conduct both external and internal evaluations of its community engagement efforts, with external evaluations conducted by community members and internal evaluations conducted by Ecology project teams. Ecology will use the results to support continuous improvement and agency performance tracking.

While the guidance in the Community Engagement Plan applies generally to Tribal communities to the extent they are included in the HEAL Act’s definition of “overburdened communities,” the Community Engagement Plan does not include tribal-specific considerations and protocols. Ecology plans to issue Tribal-specific community engagement guidance.

Implications for Regulated Entities and Project Proponents

The Community Engagement Plan does not directly impose new legal obligations on private parties. However, it may affect regulated entities and project proponents whose matters require Ecology action.

Moving forward, Ecology is likely to place greater emphasis on concepts identified in the Community Engagement Plan as important community engagement considerations, such as early engagement, use of plain language in materials describing projects, and accessibility of community engagement activities (in terms of language, convenient meeting times and locations, and disability accommodations). This could result in Ecology requesting additional information and resources from project proponents. Ecology may also seek to extend process and approval timelines or seek additional engagement for projects that could affect overburdened communities or vulnerable populations.

Next Steps

Parties with matters before Ecology should plan to:

• Build additional time into project schedules for Ecology-led engagement.
• Prepare plain language project summaries and accessible materials.
• Consider whether community engagement may identify project concerns, mitigation measures, or alternatives that could affect agency review and ultimately project requirements.
• Monitor Ecology’s forthcoming Tribal consultation and engagement guidance.

Beveridge & Diamond advises clients in Washington and across the greater Pacific Northwest on environmental issues affecting their facilities, operations, and products. Our Seattle-based multidisciplinary team is recognized for its leadership in complex environmental litigation, regulatory compliance counseling, and remediation projects under federal and state environmental laws. Combining deep substantive experience, environmental justice insight, and a bench of trial-tested litigators, we help clients across industries navigate environmental challenges and achieve their business objectives.