Chapter 17.04 SEPA GUIDELINES

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 the city’s procedures and policies under SEPA. Hereafter, the SEPA Rules, Chapter 197-11 WAC, shall be used in conjunction with this chapter. (Ord. 761 § 2, 1984).

Article II. General Requirements

17.04.020 Purpose of this part and adoption by reference.

This part contains the basic requirements that apply to the SEPA process. The city does hereby adopt the following WAC sections by reference:

WAC

197-11-020(3) Purpose.

197-11-030 Policy.

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-055 Timing of 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. 761 § 2, 1984).

17.04.030 Additional definitions.

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

A. “City” means the municipal corporation of the city of Fife and all departments or divisions thereof.

B. “City council” means the city council of the city of Fife.

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

D. “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).

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

F. “Proponent” means an agency or private applicant proposing an action subject to SEPA.

G. “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology as now or hereafter amended. (Ord. 761 § 3, 1984).

17.04.040 Designation of responsible official.

For those proposals for which the city is the lead agency, the responsible official shall be the community development director.

A. 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” by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

B. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapters 42.17A and 42.56 RCW. (Ord. 1777 § 1 (Exh. A), 2012; Ord. 1170 § 1, 1994; Ord. 761 § 4, 1984).

17.04.050 Lead agency determination and responsibilities.

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 forward to 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 decisions on the proposal. No department shall 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 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 that 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 a 15-day period. Any such petition on behalf of the city may be initiated by the responsible official.

E. The city is authorized to make agreements as to the 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 that will incur responsibilities as the result of such agreement approve the agreement.

F. When the city makes a lead agency determination for a private project it 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. 761 § 5, 1984).

17.04.060 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 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 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 shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 761 § 6, 1984).

17.04.070 Additional timing considerations.

A. For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the 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. 761 § 7, 1984).

Article III. Categorical Exemptions
and Threshold Determinations

17.04.080 Purpose of this part and adoption by reference.

This part contains rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This part also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following WAC sections by reference:

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. 761 § 8, 1984).

17.04.090 Use of exemptions.

A. 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 ordinance apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal.

B. In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If the 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.

C. 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 as authorized in WAC 197-11-070:

1. A department 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 actions were not approved; and

2. A department 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. 761 § 9, 1984).

17.04.100 Environmental checklist.

A. 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.

B. 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.

C. 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:

1. The city has technical information on a question or questions that is unavailable to the private applicant; or

2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 761 § 10, 1984).

17.04.110 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.

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

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, to remove all negative impacts, 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 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 a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

F. Mitigated DNSs under WAC 197-11-340(2) require a 14-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 the same manner as any term or condition of the permit, or 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) (withdrawal of DNS).

I. The city’s written response under subsection (C) of this section shall not be construed as 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. 1912 § 6, 2015; Ord. 761 § 11, 1984).

Article IV. Environmental Impact Statement (EIS)

17.04.120 Purpose of this part and adoption by reference.

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

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.

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. 761 § 12, 1984).

17.04.130 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 ordinance 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 and 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 application 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 ordinance, or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute). (Ord. 761 § 13, 1984).

Article V. Commenting

17.04.140 Adoption by reference.

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

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. 761 § 14, 1984).

17.04.150 Public notice.

A. 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:

1. 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.

2. If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located.

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 indicating the availability of the DEIS in any public notice required for a nonexempt license; and in addition one of the following methods:

1. Posting the property, for site-specific proposals;

2. Publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located;

3. Notifying public or private groups which have express interest in a certain proposal or in the type of proposal being considered;

4. Notifying the news media;

5. Placing notices in appropriate regional, neighborhood, ethnic or trade journals; and

6. Publishing notice and agency newsletters and/or sending notice to agency mailing lists (general 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. 772 § 1, 1984; Ord. 761 § 15, 1984).

17.04.160 Designation of official to perform consulted agency responsibilities.

A. The city manager or his designee shall be responsible for the 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. The city manager or his designee 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. 1777 § 1 (Exh. A), 2012; Ord. 761 § 16, 1984).

Article VI. Using Existing Environmental Documents

17.04.170 Purpose of this part and adoption by reference.

This part 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 WAC 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 Addenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference – Procedures.

197-11-640 Combining documents.

(Ord. 761 § 17, 1984).

Article VII. SEPA and Agency Decisions

17.04.180 Purpose of this part and adoption by reference.

This part contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following WAC 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. 761 § 18, 1984).

17.04.190 Substantive authority.

A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city.

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;

2. Such conditions are in writing;

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

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 (F) of this section and cited in the license or other decision document.

C. The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

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;

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 (F) of this section and identified in writing in the decision document.

D. The city designated and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section. 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:

1. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

2. Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings;

3. Attain the widest range of beneficial use of the environment without degradation, risk to the health or safety, or other undesirable and unintended consequences;

4. Preserve important historic, cultural and natural aspects of our national heritage;

5. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

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

7. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

E. The city recognizes that each person has a fundamental and inalienable right to a healthy environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

F. The city adopts by reference all policies of the city in its existing codes, ordinances and resolutions, as now existing or hereafter amended, including, but not limited to, Fife comprehensive land use plan, zoning code, subdivision regulations, noise control, water comprehensive plan, water and sewer regulations, park and recreation plan, storm drainage regulations, land fill regulations, floodplain management code, six-year transportation improvement program, International Building Code, International Residential Code, International Fire Code, Uniform Plumbing Code, Uniform Mechanical Code and Uniform Code for the Abatement of Dangerous Buildings. (Ord. 1802 § 10, 2012; Ord. 955 § 1, 1988; Ord. 772 §§ 2, 3, 1984; Ord. 761 § 19, 1984).

17.04.200 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 notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1751 § 1 (Exh. A), 2011; Ord. 761 § 20, 1984).

Article VIII. Definitions (Reserved)

Article IX. Categorical Exemptions

17.04.220 Adoption by reference.

The city adopts by reference the following rules for categorical exemptions:

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 761 § 22, 1984).

Article X. Agency Compliance

17.04.230 Purpose of this part and adoption by reference.

This part 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 agencies activities. The city adopts the following sections by reference:

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 Application to ongoing actions.

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 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. 1808 § 28, 2012; Ord. 761 § 23, 1984).

17.04.240 Environmentally sensitive areas.

A. Lands located within the 100-year floodway of Wapato Creek as shown on the United States Department of Housing and Urban Development National Flood Insurance Program Floodway Boundary and Floodway Map, dated November 5, 1980, are designated as environmentally sensitive areas and are adopted herein by reference. For each environmentally sensitive area, the exceptions within WAC 197-11-800 that are inapplicable for that area are: WAC 197-11-800(1)(a) through (c), (2)(a) through (h), (3)(a) and (c).

B. The city shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this ordinance, making a threshold determination for all such proposals. The city shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.

C. Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. (Ord. 772 § 4, 1984; Ord. 761 § 24, 1984).

Article XI. Forms

17.04.260 Adoption by reference.

The city adopts the following forms and WAC sections by reference:

WAC

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of nonsignificant (DNS).

197-11-980 Determination of significance and scoping notice (DS).

197-11-985 Notice of assumption of lead agency status.

197-11-990 Notice of action.

(Ord. 761 § 26, 1984).

Article XII. Severability

17.04.270 Severability.

If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances shall not be affected. (Ord. 761 § 27, 1984).