40.570.040 Threshold Determinations
A. Purpose of This Section and Adoption by Reference.
This section contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This section also contains rules for evaluating the impacts or proposals not requiring an EIS. The county adopts the following sections of the SEPA Rules by reference, as supplemented in this section:
WAC
197-11-300 Purpose of this part
197-11-310 Threshold determination required
197-11-315 Environmental checklist
197-11-330 Threshold determination process
197-11-335 Additional information
197-11-340 Determination of nonsignificance (DNS)
197-11-350 Mitigated DNS
197-11-355 Optional DNS process
197-11-360 Determination of significance (DS)/initiation of scoping
197-11-390 Effect of threshold determination
B. Environmental Checklist.
1. A completed environmental checklist (or a copy), substantially in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this chapter; except, a checklist is not needed if the county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The county shall use the environmental checklist to determine the lead agency and, if the county is the lead agency, for determining the responsible official and for making the threshold determination.
2. For private proposals, the county will require the applicant to complete the environmental checklist, providing assistance as necessary. For county proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.
3. The county may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:
a. The county has technical information on a question or questions that is unavailable to the private applicant; or
b. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.
C. Threshold Determinations.
In reviewing an environmental checklist, the responsible official shall apply the threshold determination criteria of WAC 197-11-330 and, if necessary, may initiate the additional information-gathering procedures of WAC 197-11-335. Upon completion of this process, the responsible official shall issue one (1) of the following documents and proceed with requirements of the respective sections and subsections below: determination of nonsignificance (DNS); mitigated DNS; or determination of significance (DS).
D. Determination of Nonsignificance (DNS).
1. If the responsible official determines there will be no probable significant adverse environmental impacts from a proposal, a determination of nonsignificance (DNS) shall be prepared. The DNS shall be combined with the environmental checklist and other supporting documents to accompany the proposal through the normal review process.
2. If the proposal for which any DNS is issued involves another agency with jurisdiction, demolition of any nonexempt structure, issuance of non-exempt clearing or grading permits, or a GMA action, the following requirements apply:
a. The DNS, environmental checklist, and other supporting documents shall be sent for a fourteen (14) calendar day review and comment period to agencies with jurisdiction, the Washington Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal;
b. Public notice shall be given in accordance with Section 40.570.060(C); and
c. The proposal shall not be acted upon for fourteen (14) calendar days after the date of issuance of the DNS.
3. The responsible official shall reconsider the DNS based on comments received, and may retain, modify or withdraw the DNS under WAC 197-11-340(2)(f) and (3)(a). Any modified DNS shall be sent to agencies with jurisdiction, but does not require a new comment period.
E. Optional DNS Process.
1. For all proposals for which the county is the lead agency and determines upon a reasonable basis that adverse environmental impacts are unlikely, the county may use a single integrated comment period to obtain comments on the notice of application and the likely threshold determination for the proposal. When this process is used, a second comment period for the DNS will typically not be required.
2. Where the optional DNS process is used, the county shall:
a. State on the first page of the notice of application that it expects to issue a DNS for the proposal, and that:
(1) The optional DNS process is being used;
(2) This may be the only opportunity to comment on the environmental impacts of the proposal;
(3) The proposal may include mitigation measures under applicable codes, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared; and
(4) A copy of the subsequent threshold determination for the specific proposal may be obtained upon request.
b. List in the notice of application the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected;
c. Comply with the requirements for a notice of application and public notice in RCW 36.70B.110; and
d. Send the notice of application and environmental checklist to:
(1) Agencies with jurisdiction, the Washington Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and
(2) Anyone requesting a copy of the environmental checklist for the specific proposal.
3. If the lead agency indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application (WAC 197-11-948).
4. The responsible official shall consider timely comments on the notice of application and either:
a. Issue a DNS or mitigated DNS with no comment period using the procedures in Section 40.570.040(E)(5);
b. Issue a DNS or mitigated DNS with a comment period using the procedures in Section 40.570.040(E)(5), if the lead agency determines a comment period is necessary;
c. Issue a DS; or
d. Require additional information or studies prior to making a threshold determination.
5. If a DNS or mitigated DNS is issued under Section 40.570.040(E)(4)(a), the lead agency shall send a copy of the DNS or mitigated DNS to the Washington Department of Ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated.
F. Mitigated DNS.
1. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarification of, the proposal made by the applicant.
2. An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:
a. Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and
b. Precede the county’s actual threshold determination for the proposal.
3. The responsible official should respond to the request for early notice within ten (10) working days. The response shall:
a. Be written;
b. State whether the county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the county to consider a DS; and
c. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.
4. As much as possible, the county should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.
5. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the county shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen (15) days of receiving the changed or clarified proposal:
a. If the county indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the county shall issue and circulate a DNS under Section 40.570.040(D)(2) and WAC 197-11-340(2).
b. If the county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the county shall make the threshold determination, issuing a DNS or DS as appropriate.
c. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot stormwater retention pond at Y location” are adequate.
d. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies, or other documents.
6. A mitigated DNS is issued under Section 40.570.040(D)(2) and WAC 197-11-340(2), requiring a fifteen (15) day comment period and public notice.
7. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the county.
8. If the county’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the county should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).
9. The county’s written response under Section 40.570.040(F)(2) shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the county to consider the clarifications or changes in its threshold determination.
G. Determination of Significance (DS).
1. If the responsible official determines that a proposal may have a probable significant adverse environmental impact, a determination of significance (DS) shall be prepared. The DS document shall also serve as a scoping notice for soliciting comments on the scope of the EIS. If a determination of significance is made concurrently with any notice of application required pursuant to Section 40.510.020(E) for Type II decisions or Section 40.510.030(E) for Type III decisions, the notice of application shall be combined with the DS/scoping notice.
2. The responsible official shall circulate the DS/scoping notice to the applicant, the Washington Department of Ecology, other agencies with jurisdiction and expertise, affected tribes, and the public. Notice shall be given under Section 40.570.060(C). In the event a proposal is changed so as to result in a withdrawn determination of significance, a DNS shall be sent to all who commented on the DS/scoping notice; in such cases, a new public notice and fifteen (15) day comment period shall be provided.