Chapter 16.05 SEPA

This chapter shall apply to legislative and other actions affecting the quality of the environment as set forth in chapter 43.21C RCW and chapter 197-11 WAC. [Ord. 1583 § 13, 2013.]

16.05.030 Purpose.

The purpose of this chapter is to implement chapter 43.21C RCW and the applicable Washington Administrative Code provisions. [Ord. 1583 § 14, 2013.]

16.05.040 Authority.

The City adopts 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, and chapter 43.21C RCW, must be used in conjunction with this chapter. [Ord. 1688 § 1, 2017: Ord. 1583 § 15, 2013.]

16.05.050 General – Requirements.

The City adopts by reference the definitions contained in WAC 197-11-040 through 197-11-268. [Ord. 1583 § 16, 2013.]

16.05.060 Definitions – Additional.

The City adopts by reference the definitions contained in WAC 197-11-700 through 197-11-799. In addition, the following definitions are adopted for this chapter:

“Advisory body” means a body established by ordinance of the City Council whose responsibilities include making recommendation to the City Council on actions subject to SEPA.

“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).

“Proponent” means an agency or private applicant proposing an action subject to SEPA. For purposes of agency contact the proponent means the contact person on the environmental checklist, or agency designated for that purpose by the agency or private applicant.

“SEPA rules” means chapter 197-11 WAC adopted by the State Department of Ecology. [Ord. 1583 § 17, 2013.]

16.05.070 Designation of responsible official.

(1) For those proposals for which the City is the lead agency, the responsible official shall be the Community Development Director.

(2) For all 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” in accordance with chapter 197-11 WAC.

(3) The City shall retain all documents required by the SEPA rules and make them available in accordance with chapter 42.56 RCW. [Ord. 1688 § 2, 2017: Ord. 1583 § 18, 2013.]

16.05.080 Lead agency – Determination and responsibilities.

(1) 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, 197-11-253, and 197-11-922 through 197-11-940; unless the lead agency has been previously determined or the department is aware that another agency is in the process of determining the lead agency.

(2) 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 decisions on the proposal. The responsible official shall not prepare or require preparation of a DNS or EIS in addition to that prepared 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.

(3) 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 197-11-253 or 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 shall be initiated by the responsible official.

(4) The responsible official is 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.

(5) The responsible official 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.

(6) When the City is the lead agency for a MTCA remedial action, the Department of Ecology shall be provided an opportunity under WAC 197-11-253(5) to review the environmental documents prior to the public notice being provided. If the SEPA and MTCA documents are issued together with one public comment period under WAC 197-11-253(6), the City shall decide jointly with Ecology which agency receives the comment letters and how copies of the comment letters will be distributed to the other agency. [Ord. 1583 § 19, 2013.]

16.05.090 Lead agency – Transfer to 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 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. 1583 § 20, 2013.]

16.05.100 Document schedule.

For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the City’s staff recommendation. [Ord. 1583 § 21, 2013.]

16.05.110 Categorical exemptions – Threshold determinations.

The City adopts WAC 197-11-300 through 197-11-390 by reference as supplemented in this chapter. [Ord. 1583 § 21, 2013.]

16.05.120 Use of exemptions.

(1) Each department within the City that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal shall determine whether the license and/or the proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The City shall not require completion of an environmental checklist for an exempt proposal.

(2) In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental license required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.

(3) If a proposal includes both exempt and nonexempt actions, the City may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

(a) The City shall not give authorization for:

(i) Any nonexempt action;

(ii) Any action that would have an adverse environmental impact; or

(iii) Any action that would limit the choice of alternatives.

(b) The responsible official may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

(c) The responsible official may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. [Ord. 1583 § 22, 2013.]

16.05.130 Environmental checklist.

(1) Except as provided in subsection (5) of this section, a completed environmental checklist 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 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 for making the threshold determination.

(2) 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.

(3) The City 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 City 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.

(4) The City may request that the applicant include supplemental studies with the environmental checklist if the responsible official determines that such studies are necessary to adequately assess the environmental impacts of a proposal. If mutually agreed to by the City and the applicant, supplemental studies may be contracted for directly by the City and funded by the applicant using the procedures set forth in DMMC 16.10.070, Special studies required.

(5) For projects submitted as planned actions under WAC 197-11-164, the City shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. The modified environmental checklist form may be prepared and adopted along with or as part of a planned action ordinance; or developed after the ordinance is adopted. In either case, a proposed modified environmental checklist form must be sent to the Department of Ecology to allow at least a 30-day review prior to use. [Ord. 1583 § 23, 2013.]

16.05.140 Mitigated DNS.

(1) As provided in this chapter 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.

(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 City’s actual threshold determination for the proposal.

(3) The responsible official should respond to the request for early notice within 15 working days. The response shall:

(a) Be written;

(b) 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

(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 City 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 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:

(a) 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).

(b) 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.

(c) The applicant’s proposed mitigation measures (clarifications, changes, or conditions) must be in writing and must be specific.

(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 WAC 197-11-340(2), requiring a 14-day comment period and public notice, or WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.

(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 City.

(8) 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).

(9) The City’s written response under subsection (3) 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. 1583 § 24, 2013.]

16.05.150 Environmental impact statements.

The City adopts WAC 197-11-400 through 197-11-460 by reference, as supplemented by this chapter. [Ord. 1583 § 25, 2013.]

16.05.160 Preparation of EIS – Additional provisions.

(1) Preparation and content of draft and final EISs (DEIS and FEIS), and draft and final supplemental EISs (SEIS) is the responsibility of the Planning, Building and Public Works Department under the direction 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.

(2) The DEIS and FEIS or draft and final SEIS shall be the responsibility of City staff. The Planning, Building and Public Works Department shall contract with consultants as necessary for the preparation of an EIS. The cost of preparing an EIS shall be borne entirely by 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 notify the applicant of the City’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

(3) Consultants or subconsultants selected by the City to prepare environmental documents for a private development proposal shall not:

(a) Act as agents for the applicant in preparation or acquisition of associated underlying permits; or

(b) Have a financial interest in the proposal for which the environmental document is being prepared; or

(d) Perform, contract for, or agree to perform any other work or provide any other services for the applicant while working on the environmental documents for the proposal.

(4) The Planning, Building and Public Works Department shall establish and maintain one or more lists of qualified consultants who are eligible to receive contracts for preparation of environmental documents. Separate lists may be maintained to reflect specialized qualifications or expertise. When the Planning, Building and Public Works Department requires consultant services to prepare an EIS, the applicant shall select two or three candidates from the appropriate consultant list(s) and submit the names of those candidates to the Planning, Building and Public Works Department for consideration to prepare the EIS. The Planning, Building and Public Works Department shall interview the candidate consultants, select the most qualified consultant and negotiate a contract for services. In the event that two or more of the candidate consultants are qualified to prepare the EIS, the Planning, Building and Public Works Department will negotiate with each consultant and select the consultant who can prepare the EIS at the lowest cost to the applicant. The Planning, Building and Public Works Director shall promulgate administrative rules that establish processes to:

(a) Create and maintain a qualified consultant list;

(b) Add consultants to the list; and

16.05.170 Additional elements to be covered.

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this chapter:

(1) Economy;

(2) Social policy analysis;

(3) Cost-benefit analysis. [Ord. 1583 § 27, 2013.]

16.05.180 Commenting rules.

The City adopts WAC 197-11-500 through 197-11-570 by reference, as supplemented in this chapter. [Ord. 1583 § 28, 2013.]

16.05.190 Public notice procedure – Notice of DNS, mitigated DNS, or DS.

Whenever the City issues a DNS under WAC 197-11-340(2), a mitigated DNS under WAC 197-11-350(3), or a DS under WAC 197-11-360(3), the public notice of these actions shall be given as follows:

(1) Signs Required for Site-Specific Proposals. Applicants shall post one or more large signs on the subject property giving public notice of a proposed action as set forth in this subsection.

(a) Size. All signs shall be four feet by eight feet in size.

(i) Single-Family Residential Zone. All signs shall be two feet by four feet in size.

(ii) All Other Zones. All signs shall be four feet by eight feet in size.

(b) Number of Signs. One public notice sign shall be required per street frontage. In case of large parcels or street frontages exceeding 500 feet, the SEPA Official may require the posting of additional signs.

(c) Location. Signs shall be located on the site of the proposed action, set back at least 10 feet from a public right-of-way or private road or easement as applicable, and shall be situated to maximize readability by the public from public rights-of-way. A sign may be located within the 10-foot setback, if determined necessary by the SEPA Official to provide adequate visibility.

(d) Duration of Installation. Public notification signs shall be installed at the time the DNS, mitigated DNS, or DS is issued. Signage shall remain in place until the final decision on the underlying governmental action. Any required signage installed shall not be removed until the City has taken action on the application and the time for filing an appeal of that action has expired. If an application is denied, any required signage shall remain in place unless the applicant has informed the SEPA Official, in writing, of their intent not to appeal.

(e) Alternative Signage.

(i) Finding of Necessity. Upon a finding of necessity by the SEPA Official, the applicant may employ an alternative to the large sign requirement. Ten signs of a dimension of 11 inches by 17 inches may be posted within 300 feet of the site and at the closest street intersections, subject to the consent of any affected property owner, when one or more of the following conditions exist and the intent of this section is met:

(A) The applicant is not the property owner, and the property owner does not consent to the proposal.

(B) The site is subject to physical characteristics such as steep slopes, wetlands, submerged lands, or thick vegetation, or is located such that the large sign would not be highly visible to neighboring residents and property owners or interested citizens.

(ii) Small Sign Discretion. The SEPA Official is further granted discretion to permit one or more signs of a dimension of 11 inches by 17 inches as an alternative to the large sign requirement when the following conditions exist and the intent of this section is met:

(A) Where, in the opinion of the SEPA Official, the project is of a substantially minor nature; and

(B) In the opinion of the SEPA Official, adequate public notice would be rendered by employment of one or more signs of a dimension of 11 inches by 17 inches as an alternative to the large sign requirement.

(f) Additional Signage May Be Required. The SEPA Official may require both large signs and the alternative posting measures described in subsection (1)(e) of this section, or may require that more than one large sign be posted, when necessary to assure that notice is clearly visible to the public.

(g) Affidavit of Certification – Signage. The applicant shall file an affidavit of certification-signage with the SEPA Official stating that the signs as required by this subsection were installed on the subject property. The affidavit shall be in a form prescribed by the SEPA Official. The affidavit of certification-signage shall be filed not less than 14 days prior to either the date of any scheduled hearing or the date by which the public may submit comments on the application, whichever is sooner. If the affidavit is not filed as required in this subsection, any scheduled hearing, or date by which the public may comment on the application, shall be postponed or extended in order to comply with this section.

(h) Removal of Signs. In any event, any required signage must be removed by the applicant within seven days following the last day that an appeal of the action could be filed. If not so removed by the applicant, any required signage shall be removed by the City at the applicant’s expense. By filing an application subject to the provisions of this section, the applicant consents to City personnel going upon the applicant’s property for the purpose of removing any signage required by this section.

(i) Cash Deposit. The amount of $100.00 shall be deposited by the applicant upon filing of any of the applications specified in this section to assure removal of any required signage in accordance with this subsection. This deposit shall be refunded if signs are timely removed in accordance with this subsection. If signs are not so removed, such deposit shall be forfeited to the City and shall be used to cover the expenses of removal by the City.

(j) Sign Code Exemption. Any required signage is exempt from the requirements of the sign code, chapter 18.200 DMMC.

(k) Design Requirements. The SEPA Official shall specify detailed design requirements for any required signage, including materials, stroke width, lettering, color, format, and other design characteristics.

(2) Bulletin Boards. Notice shall be posted by the City at the official City posting places and on the indoor bulletin boards at the City Planning, Engineering, and Public Works building.

(3) Interested Groups. The City shall notify in writing public agencies, private groups, or individuals who have expressed interest in a certain project.

(4) Newspaper. Notice shall be published in the official City newspaper.

(5) Property Owners and Occupants/Tenants. For site-specific proposals, the City shall notify in writing all property owners and occupants/tenants within a 300-foot radius of the exterior boundaries of the subject property of the project proposal. If any portion of an apartment or condominium complex lies within the 300-foot radius, all occupants/tenants and property owners shall be given public notice. The applicant shall provide the SEPA Official with a complete list of the names, parcel numbers, and taxpayers’ mailing addresses as shown in the records of the King County Assessor to within 45 days of initial application submittal of all such properties and mailing addresses for all occupants/tenants, certifying the same as a full and complete list under penalty of perjury. Occupants/tenants shall be addressed as “Occupant/Tenant” and by unit in a multiple-unit building but need not be identified by name. Property owners shall be identified by name. The form and wording of the written notice shall be prescribed by the SEPA Official. The mailing labels submitted to the City shall only be valid for 180 days from the date of notification of complete application issued by the City as required by chapter 18.20 DMMC. Once the 180 days have passed, the applicant shall be required to submit new mailing labels based on the records of the King County Assessor at that time. The SEPA Official shall provide the applicant with City envelopes. Thereafter, it shall be the responsibility of the applicant to insert the written notices, and address envelopes with the correct mailing address, stamp, and seal the envelopes and return them to the SEPA Official. The applicant shall be responsible for payment of all costs connected with such notice, including but not limited to postage, envelopes, letterhead, and notice reproduction. [Ord. 1583 § 29, 2013.]

16.05.200 Public notice procedure – Notice of DS scoping procedure.

Whenever the City issues a DS under WAC 197-11-360(3), notice of the scoping procedure for the proposal as required in WAC 197-11-408 shall be given in the manner of public notice required by DMMC 16.05.190. [Ord. 1583 § 30, 2013.]

16.05.210 Public notice procedure – Notice of DEIS and draft SEIS.

Whenever the City issues a DEIS under WAC 197-11-455(5) or a draft SEIS under WAC 197-11-620, notice of these documents and their availability shall be given as follows:

(1) Public Hearings. Any required public hearing notice shall indicate the availability of the DEIS or the SEIS.

(2) No Public Hearing. For applications not requiring a public hearing, the following public notice requirements shall apply:

(a) Posting notice in accordance with DMMC 16.05.190(2);

(b) Notifying interested groups and agency mailing lists in accordance with DMMC 16.05.190(3);

(d) Notifying property owners and occupants/tenants in accordance with DMMC 16.05.190(5). [Ord. 1583 § 31, 2013.]

16.05.220 Public notice procedure – Content of notice.

The public notice required under this section shall contain such of the following information as the SEPA Official determines is applicable:

(1) Name of the applicant and the project;

(2) Address of the project;

(3) Legal description of subject property (not required on signage);

(4) Brief description of proposed use;

(5) Date, time, and place of public hearing on the proposal if a hearing is required. The notice shall display the date by which and place at which the public may submit comments to the City on the proposal. The notice shall display whether a DNS, mitigated DNS, or DS has been issued, their availability, and when comments are due, and the scoping procedure for the DS. The notice shall state that any person may appear or be heard and that written comments will be accepted and made part of the record, and state that the hearing will be held in accordance with the rules of procedure of the hearing body;

(6) The name, address, and office telephone number of the person within the Planning, Building and Public Works Department or other City department from whom additional information may be obtained;

(7) Drawings showing the property affected by the proposed action;

(8) Other information as required by the SEPA Official. [Ord. 1583 § 32, 2013.]

16.05.230 Public notice procedure – Timing of notices.

(1) Signs, Bulletin Boards and Newspaper Publication for Site-Specific Proposals. In the case of site-specific proposals, the notification required under DMMC 16.05.190(2), (3), and (4) shall be made after the affidavit certifying compliance with the notification requirements of DMMC 16.05.190(1) and (5) and the list of names, addresses, and mail-ready envelopes required by DMMC 16.05.190(5) have been received by the SEPA Official.

(2) When an open record hearing is required and chapter 16.05 DMMC requires public notice of a threshold determination, the Planning, Building and Public Works Director shall issue the threshold determination at least 25 days prior to the open record hearing. The purpose of this requirement is to allow for expiration of the 15-day comment period and the 10-day appeal period related to the SEPA determination prior to the public hearing. In the event an appeal of the SEPA determination is filed, the public hearing shall also constitute an open record appeal hearing. The Planning, Building and Public Works Director may request that the combined public hearing and appeal hearing be continued in order to allow parties to the appeal to prepare appeal arguments.

(3) For applications or proposals subject to the Shoreline Master Program, notice shall be published in the official City newspaper once each week for two consecutive weeks, with the last publication date no less than 30 days prior to the public hearing. [Ord. 1583 § 33, 2013.]

16.05.240 Public notice procedure – Comment period.

(1) DNS or Mitigated DNS. Once a DNS or mitigated DNS is issued, the SEPA Official shall provide a 15-day public comment period prior to taking any action on the application.

(2) DS. When a DS is issued, the SEPA Official shall invite comments on the scope of an EIS for a minimum period of 21 days.

(3) DEIS or SEIS. Once a DEIS or a draft SEIS is issued, the SEPA Official shall provide a 30-day public comment period prior to taking any action on the application or proposal.

(4) Shoreline Permits. For applications or proposals subject to the Shoreline Master Program, the SEPA Official shall provide a 30-day public comment period prior to public hearing or taking any action on the application or proposal. [Ord. 1583 § 34, 2013.]

16.05.250 Public notice procedure – Coordination of required notices.

(1) Whenever possible, the City shall integrate the public notice required under this section with existing notice procedures. In the case of a conflict, the notice requirements provided in this section shall prevail.

(2) If an environmental document as defined by WAC 197-11-744 is issued concurrently with the notice of application, the public notice requirements for the notice of application in RCW 36.70B.110(4) will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1).

(3) If a DNS is issued using the optional DNS process, the public notice requirements for a notice of application in RCW 36.70B.110(4) as supplemented by the requirements in WAC 197-11-355 will suffice to meet the SEPA public notice requirements in WAC 197-11-510(b).

(4) Public notice for projects that qualify as planned actions shall be tied to the underlying permit as specified in WAC 197-11-172(3). [Ord. 1583 § 35, 2013.]

16.05.260 Public notice procedure – Public notice costs.

The applicant shall be responsible for all public notice costs incurred by the City for public notice requirements stated in this chapter. [Ord. 1583 § 36, 2013.]

16.05.270 Consulted agency – Official designated.

(1) The Planning, Building and Public Works Department 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.

(2) This Department 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 response to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the City. [Ord. 1583 § 37, 2013.]

16.05.275 Public notice (WAC 173-806-132).

(1) 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.

(2) Whenever the 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:

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

(b) If an environmental document is issued concurrently with the notice of application, the public notice requirements for the notice of application in RCW 36.70B.110(4) will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1).

(c) If no public notice is otherwise required for the permit or approval, the City shall give notice of the DNS or DS by:

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

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

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

(iv) Notifying the news media;

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

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

(d) 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.

(4) 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:

(a) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and (Note: In addition select at least one of the following or insert all of the list and require that at least one method be used.)

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

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

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

(e) Notifying the news media;

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

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

(5) Public notice for projects that qualify as planned actions shall be tied to the underlying permit as specified in WAC 197-11-172(3).

(6) The City may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. [Ord. 1583 § 38, 2013.]

16.05.280 Use of existing and supplementing environmental documents and planned actions.

The City adopts by reference the sections contained in WAC 197-11-164 through 197-11-172 and 197-11-600 through 197-11-640. [Ord. 1583 § 39, 2013.]

16.05.290 Planned actions.

(1) The City endorses the procedures in the SEPA rules adopted in this article for project proposal review as a “planned action” and will apply the provisions of WAC 197-11-164 through 197-11-172 to projects which meet the criteria for planned action environmental review under RCW 43.21C.031.

(2) Where a project proposal meets the requirements and criteria for a planned action set forth in WAC 197-11-164 through 197-11-172, and any planned action ordinance adopted by the City, the responsible official shall not be required to issue a threshold determination or EIS under the provisions of this chapter.

(3) Nothing in this section limits the City from using this chapter or other applicable law to place conditions on the project in order to mitigate nonsignificant impacts through the normal project review and permitting process.

(4) Public notice for projects that qualify as planned actions shall be tied to the underlying permit. If notice is otherwise required for the underlying permit, the notice shall state that the project has qualified as a planned action. If notice is not otherwise required for the underlying permit, no special notice is required. [Ord. 1583 § 40, 2013.]

16.05.300 SEPA and Agency decisions – Appeal.

The City adopts by reference WAC 197-11-650 through 197-11-680. [Ord. 1583 § 41, 2013.]

16.05.310 Substantive authority – Conditions – Denial – Policies.

(1) The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the City.

(2) The City may attach conditions to a permit for approval for a proposal so long as:

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

(b) Such conditions are in writing; and

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

(e) Such conditions are based on one or more of the policies or policy sources identified in subsection (4) of this section and cited in the license or other decision document.

(3) The City may deny a permit or approval for a proposal on the basis of SEPA so long as:

(a) 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

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

(c) The denial is based on one or more policies or policy sources identified in subsection (4) of this section and identified in writing in the decision document.

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

(a) 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:

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

(ii) Assure for all people of the state safe, healthful, productive, and aesthetically and culturally pleasing surroundings; and

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

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

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

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

(vii) Enhance the quality of renewable resources and approach the maximum attainable recycling of nonrenewable resources.

(b) 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.

(c) The City’s substantive SEPA authority to condition or deny projects, proposals or connected actions shall be exercised on the basis of the regulations, plans, studies, reports or codes identified in subsection (4)(d) of this section, each of such items being adopted and/or reaffirmed by this reference.

(d) The City formally designates the following regulations, plans, studies, reports or codes as possible bases for the exercise of authority pursuant to the State Environmental Policy Act of 1971 as amended:

(i) City of Des Moines Comprehensive Plan;

(ii) 2010 Parks, Recreation and Senior Services Master Plan, November 2009;

(iii) City of Des Moines Shoreline Master Program;

(iv) The Des Moines Municipal Code;

(v) Sea-Tac International Airport Impact Mitigation Study, February 1997, prepared by Hellmuth, Obata and Kassabaum, Inc., and Raytheon Infrastructure Services, Inc., under a grant from the state of Washington;

(vi) City of Des Moines Comprehensive Transportation Plan;

(vii) Washington State Department of Transportation Pavement Guide;

(viii) Highway Capacity Manual, Special Report 209, Transportation Research Board;

(ix) City of Des Moines Street Development Standards;

(x) Institute of Transportation Engineers, Trip Generation Manual;

(xi) City of Des Moines Comprehensive Storm Water Management Plan;

(xii) Lower Massey Creek Alternative Analysis, August 1994;

(xiii) Des Moines Creek Basin Plan, November 1997, prepared by the Des Moines Creek Basin Committee (City of Des Moines, City of SeaTac, King County and Port of Seattle);

(xiv) City of Normandy Park Stormwater Plan – 2013;

(xv) King County Surface Water Design Manual;

(xvi) Stormwater Management Manual for the Western Washington, Washington State Department of Ecology;

(xvii) King County Stormwater Pollution Control Manual, Best Management Practices for Businesses;

(xviii) Massey Creek Comprehensive Flood Control Management Plan for the City of Des Moines, June 1990;

(xix) North Fork of Smith Creek Drainage Basin Study for the City of Des Moines, June 1987;

(xx) Executive Proposed Basin Plan Hylebos Creek and Lower Puget Sound, King County Surface Water Management, July 1991;

(xxi) Shoreline Management Guide Book;

(xxii) Code of the King County Board of Health;

(xxiii) Washington State Flood Reduction Plan (1993 DCD);

(xxiv) Guide to Conducting Wetland Inventories (DOE);

(xxv) Washington State Shoreline Management Act of 1971;

(xxvi) Standard Specification for Construction of Trails (Forest Service 1984);

(xxvii) Puget Sound Water Quality Management Plan;

(xxviii) Planning documents not specifically listed above but referenced in the environmental analysis of the City’s Comprehensive Plan, Chapter 15.1;

(xxix) The approved federal wetland delineation manual and applicable regional supplements.

(e) It is the City’s policy to protect its residents and businesses from the long-term consequences of successive incremental negative environmental impacts associated with a specific proposal or its connected action(s). Accordingly, the City may condition or deny proposals in order to mitigate or prevent such long-term impacts.

(f) Unusual circumstances related to a site, a proposal, or a connected action, as well as probable significant adverse environmental impacts not capable of adequate mitigation using the foregoing provisions, may be cause for denial of a proposal or development of site-specific or project-specific SEPA mitigation. [Ord. 1671 § 11, 2017; Ord. 1649 § 2, 2016; Ord. 1583 § 42, 2013.]

16.05.320 Agency SEPA appeal.

(1) Definitions. Use of words and phrases. As used in this section, unless the context or subject matter clearly requires otherwise, the words and phrases defined in this section shall have the indicated meanings.

“Agency” means the City.

“Appeal” means the process by which a SEPA determination is contested.

“SEPA determination” means a SEPA procedural determination or a SEPA substantive determination.

“SEPA procedural determination” includes the adequacy of a determination of significance/nonsignificance or of a final environmental impact statement.

“SEPA substantive determination” includes a decision to require particular mitigation measures or to deny a proposal.

“Underlying governmental action” means the final decision of the agency on a proposal.

(2) The appeal described in this section is mandatory. This appeal process is supplemented by chapter 18.20 DMMC. Failure to comply strictly with the requirements of this section is considered a failure to exhaust administrative remedies and shall foreclose any further agency or judicial appeal.

(3) The appeal is initiated by filing a written appeal with the City Clerk within 10 days of the date the SEPA determination is final. In the case of an appeal to the Hearing Examiner, the appeal will not be considered filed unless accompanied by the appropriate fee.

(4) The written appeal shall contain the following:

(a) A description of the determination being appealed, including the file number;

(b) The name and address of the appellant; and

(c) A detailed statement identifying specifically the reasons why the appellant considers the SEPA determination to be inadequate.

(5) There shall be a single agency appeal of a SEPA determination:

(a) If the underlying governmental action is taken by the City Council, the appeal is heard by the City Council and is consolidated with the consideration of the underlying governmental action.

(b) If the underlying governmental action is taken by the Hearing Examiner, the appeal is heard by the Hearing Examiner and is consolidated with the consideration of the underlying governmental action.

(d) If the appeal is from a determination of significance, the appeal is heard under all circumstances by the Superior Court of Washington for King County as specified by chapter 36.70C RCW.

(6) An appeal taken to the Hearing Examiner is considered an appeal from an administrative decision and is processed accordingly under the provisions of the Hearing Examiner Code, except the decision of the Hearing Examiner is final and is not appealable to the City Council.

(7) Procedural determinations made by the responsible SEPA Official shall be entitled to substantial weight.

(8) An adequate record shall be made of all appeals taken under this section. An adequate record consists of findings and conclusions, testimony under oath, and taped or written transcripts.

(9) The City shall give official notice under WAC 197-11-680(5) when it issues a permit or a decision for which a statute or ordinance establishes a time limit for commencing judicial appeal. [Ord. 1583 § 43, 2013.]

16.05.330 Categorical exemptions – Adoption by reference.

(1) The City adopts by reference the following rules for categorical exemptions, as supplemented in this chapter:

(a) WAC 197-11-800, Categorical exemptions; except that the following flexible thresholds specified in WAC 197-11-800(1)(b) shall be adopted by the City as provided for under WAC 197-11-800(1)(c) and (d):

Project Types
Single-Family Residential	30 units or less
Multifamily Residential	30 units or less
Barn, loafing shed, farm equipment storage, produce storage or packing structure	20,000 square feet or less
Office, school, commercial, recreational, service, storage building, parking facilities	12,000 square feet and 50 parking spaces or less
Fill or excavation	500 cubic yards or less

(b) WAC 197-11-880, Emergencies.

(2) The City adopts by reference the categorical exemption for electrical vehicle charging and battery exchange stations established by RCW 43.21C.410. [Ord. 1688 § 3, 2017: Ord. 1583 § 44, 2013.]

16.05.340 Agency compliance – Rules.

DMMC 16.05.350 through 16.05.370 contain rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The City adopts by reference the sections contained in WAC 197-11-900 through 197-11-928. [Ord. 1688 § 4, 2017: Ord. 1583 § 45, 2013.]

16.05.350 Environmentally critical areas and areas of special flood hazard.

The scope of environmental review related to impacts to critical areas shall be limited to:

(1) Documenting whether the proposal is consistent with the requirements of chapter 16.10 DMMC; and

(2) Evaluating potentially significant impacts on the environmentally critical area not adequately addressed by Growth Management Act (GMA) planning documents and development regulations, if any, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and with other applicable environmental review laws. [Ord. 1688 § 5, 2017: Ord. 1583 § 46, 2013.]

16.05.360 Fees.

The City shall require fees for its activities as established by the City Manager or the City Manager’s designee.

(1) 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 a 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 the EIS, or 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 the City after a call for proposals and consultation with the applicant.

(c) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (1)(a) or (b) of this section which remain after incurred costs are paid.

(2) 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.

(3) The City may charge any person for copies of any documents prepared under this chapter, and for mailing the document, in a manner provided by chapter 42.17 RCW. [Ord. 1583 § 47, 2013.]

16.05.370 Forms – Adoption by reference.

The City adopts by reference the sections contained WAC 197-11-960 through 197-11-990. [Ord. 1583 § 48, 2013.]