Chapter 18.04 STATE ENVIRONMENTAL POLICY ACT

The city adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904. This chapter contains this city’s SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. (Ord. 592, 1984).

Article II. General Requirements

18.04.020 Purpose of this section and adoption by reference.

This section contains the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 WAC by reference:

WAC

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-055 Timing of the SEPA process.

197-11-060 Content of environmental review.

197-11-070 Limitations on actions during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

(Ord. 592, 1984).

18.04.030 Additional definitions.

In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this chapter, the following terms shall have the following meanings, unless the context indicates otherwise:

(1) “Department” means any division, subdivision or organizational unit of the city established by ordinance, rule or order.

(2) “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology.

(3) “Ordinance” means the ordinance, resolution, or other procedure used by the city to adopt regulatory requirements.

(4) “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures). (Ord. 592, 1984).

18.04.040 Designation of responsible official.

For those proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. (Ord. 592, 1984).

18.04.050 Lead agency determination and responsibility.

(a) The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940; unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

(b) When the city is the lead agency for a proposal, the department receiving the application shall determine the responsible official who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.

(c) When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate either the DNS or the final EIS of the lead agency in making decision on the proposal. No city department shall prepare or require preparation by the lead agency, unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11-600.

(d) If the city or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city may be initialed by the responsible official.

(e) Departments of the city are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the responsible official and any department that will incur responsibilities as the result of such agreement approve the agreement.

(f) Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (That is: Which agencies require nonexempt licenses?). (Ord. 592, 1984).

18.04.053 Transfer of lead agency status to a state agency.

For any proposal for a private project where the city would be the lead agency and for which one or more state agencies have jurisdiction, the city’s responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the city’s responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the city shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 592, 1984).

18.04.055 Additional time limits.

The following time limits (expressed in calendar days) shall apply when the city processes licenses for all private projects and those governmental proposals submitted to the city by other agencies:

(1) Categorical Exemptions. The city shall identify whether an action is categorically exempt within seven days of receiving a completed application.

(2) Threshold Determinations.

(A) The city should complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within 15 days of the date an applicant’s adequate application and completed checklist are submitted.

(B) When the responsible official requires further information from the applicant or consultation with other agencies with jurisdiction:

(i) The city should request such further information within 15 days of receiving an adequate application and completed environmental checklist;

(ii) The city shall wait no longer than 30 days for a consulted agency to respond;

(iii) The responsible official should complete the threshold determination within 15 days of receiving the requested information from the applicant or the consulted agency.

(C) When the city must initiate further studies, including field investigations, to obtain the information to make the threshold determination, the city should complete the studies within 30 days of receiving an adequate application and completed checklist.

(D) The city shall complete threshold determination on actions where the applicant recommends in writing that an EIS be prepared because of the probable significant adverse environmental impact(s) described in the application, within 15 days of receiving an adequate application and completed checklist. (Ord. 592, 1984).

18.04.058 Additional timing considerations.

(a) For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the city’s staff recommendation to any appropriate advisory body, such as the planning commission.

(b) If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 592, 1984).

Article III. Categorical Exemptions and Threshold Determinations

18.04.065 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 of proposals not requiring an EIS. The city adopts the following sections by reference, as supplemented into this part:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

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.

197-11-360 Determination of significance (DS)/initiation of scoping.

197-11-390 Effect of threshold determination.

(Ord. 592, 1984).

18.04.090 Environmental checklist.

A completed environmental checklist (or a copy) 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 city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for determining the responsible official and for making the threshold determination.

For private proposals, the city will require the applicant to complete the environmental checklist, providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal. (Ord. 592, 1984).

18.04.100 Mitigated DNS.

(a) 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 clarifications of, the proposal made by the applicant.

(b) An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

(1) Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

(2) Precede the city’s actual threshold determination for the proposal.

(1) Be written;

(2) State whether the city currently considers issuance of a DS likely, and if so, indicate the general or specific area(s) of concern that is/are leading the city to consider a DS; and

(3) 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.

(d) As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

(e) When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:

(1) If the city 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 city shall issue and circulate a DNS under WAC 197-11-340(2);

(2) If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate;

(3) 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;

(4) Mitigation measures which justify issuance of mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

(f) A mitigated DNS is issued under WAC 197-11-340(2), requiring a 15-day comment period and public notice.

(g) Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in any manner specifically prescribed by the city.

(h) If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).

(i) The city’s written response under subsection (b) of this section 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 city to consider the clarifications or changes in its threshold determination. (Ord. 592, 1984).

Article IV. Environmental Impact Statement

18.04.110 Purposes of section and adoption by reference.

This section contains the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by this section:

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping. (Optional)

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

197-11-442 Contents of EIS on nonproject proposals.

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 592, 1984).

18.04.120 Preparation of EIS – Additional considerations.

(a) Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

(b) The DEIS and FEIS or draft and final SEIS shall be prepared by city staff, the applicant, or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

(c) The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.) (Ord. 592, 1984).

Article V. Commenting

18.04.128 Adoption by reference.

This section contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city adopts the following sections by reference, as supplemented in this section:

WAC

197-11-500 Purpose of this part.

197-11-502 Inviting comment.

197-11-504 Availability and cost of environmental documents.

197-11-508 SEPA register.

197-11-535 Public hearings and meetings.

197-11-545 Effect of no comment.

197-11-550 Specificity of comments.

197-11-560 FEIS response to comments.

197-11-570 Consulted agency costs to assist lead agency.

(Ord. 592, 1984).

18.04.130 Public notice.

(a) Whenever a city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the city shall give public notice as follows:

(1) If public notice is required for nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due.

(2) If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by one of the following:

(A) Posting the property, for site-specific proposals;

(B) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(C) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(D) Notifying the news media;

(E) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(F) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (either general lists or lists for specific proposals for subject areas).

(3) Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

(b) Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

(1) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and one of the following:

(A) Posting the property, for site-specific proposals;

(B) Publishing a notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(C) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(D) Notifying the news media;

(E) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(F) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (general lists or specific lists for proposals or subject areas).

(c) Whenever possible, the city shall integrate the public notice required under this section with existing notice procedures for the city’s nonexempt permit(s) or approval(s) required for the proposal.

(d) The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 592, 1984).

18.04.140 Designation of official to perform consulted agency responsibilities for the city.

(a) The mayor or his designated representative shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

(b) This person shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 592, 1984).

Article VI. Existing Environmental Documents

18.04.150 Purpose of this section and adoption by reference.

This section contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the city’s own environmental compliance. The city adopts the following sections by reference:

WAC

197-11-600 When to use existing environmental documents.

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement – Procedures.

197-11-625 Agenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference – Procedures.

197-11-640 Combining documents.

(Ord. 592, 1984).

Article VII. SEPA and Agency Decisions

18.04.155 Purpose of this section and adoption by reference.

This section contains rules and policies for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This section also contains procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections by reference:

WAC

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 592, 1984).

18.04.160 Substantive authority.

(a) The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city of Davenport/Lincoln County.

(b) The city may attach conditions to a permit or approval for a proposal so long as:

(1) Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

(2) Such conditions are in writing; and

(3) The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

(4) The city has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

(5) Such conditions are based on one or more policies in subsection (d) of this section and cited in the license or other decision document.

(1) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and

(2) A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

(3) The denial is based on one or more policies identified in subsection (d) of this section and identified in writing in the decision document.

(d) The city designates and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section:

(1) The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

(A) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(B) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

(C) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(D) Preserve important historic, cultural, and natural aspects of our national heritage;

(E) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(F) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

(G) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(2) The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

(e) When any proposal or action not requiring a decision of the city council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the city council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within 10 days of the decision being appealed. Review by the city council shall be on a de novo basis. (Ord. 592, 1984).

18.04.173 Notice/statute of limitations.

(a) The city, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

(b) The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk-treasurer or county auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 592, 1984).

Article VIII. Definitions

18.04.175 Purpose of this section and adoption by reference.

This section contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by WAC 173-806-040:

WAC

197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemption.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city

197-11-730 Decision maker.

197-11-732 Department.

197-11-734 Determination of nonsignificance (DNS).

197-11-736 Determination of significance (DS).

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-748 Environmentally sensitive area.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable alternative.

197-11-788 Responsible official.

197-11-790 SEPA

197-11-792 Scope.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 592, 1984).

Article IX. Categorical Exemptions

18.04.180 Adoption by reference.

The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including WAC 173-806-070 (flexible thresholds), WAC 173-806-080 (use of exemptions), and WAC 173-806-190 (environmentally sensitive areas):

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 592, 1984).

Article X. Agency Compliance

18.04.185 Purpose of this section and adoption by reference.

This section contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections by reference, as supplemented by WAC 173-806-050 through 173-806-053 and this section:

WAC

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-916 Application to ongoing actions.

197-11-920 Agencies with environmental expertise.

197-11-922 Lead agency rules.

197-11-924 Determining the lead agency.

197-11-926 Lead agency for governmental proposals.

197-11-928 Lead agency for public and private proposals.

197-11-930 Lead agency for private projects with one agency with jurisdiction.

197-11-932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more from state agencies.

197-11-936 Lead agency for private projects requiring licenses from more than one state agency.

197-11-938 Lead agencies for specific proposals.

197-11-940 Transfer of lead agency status to a state agency.

197-11-942 Agreements on lead agency status.

197-11-944 Agreements on division of lead agency duties.

197-11-946 DOE resolution of lead agency disputes.

197-11-948 Assumption of lead agency status.

(Ord. 592, 1984).

18.04.200 Fees.

The city shall require the following fees for its activities in accordance with the provisions of this chapter:

(1) Threshold Determination. For every environmental checklist the city will review when it is lead agency, the city shall collect a fee of $25.00 from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

(2) Environmental Impact Statement.

(A) When the city is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the city, the city may charge and collect a reasonable fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

(B) The responsible official may determine that the city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. The city may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals.

(C) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (2)(A) or (2)(B) of this section which remain after incurred costs are paid.

(3) The city may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

(4) The city shall not collect a fee for performing its duties as a consulted agency.

(5) The city may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by Chapter 42.17 RCW. (Ord. 592, 1984).