Chapter 16.04 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 the city’s SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. [Ord. 1085 § 1, 1998.]

16.04.020 General requirements.

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.

197-11-158 GMA project review – Reliance on existing plans and regulations.

197-11-210 SEPA/GMA integration.

197-11-220 SEPA/GMA definitions.

197-11-228 Overall SEPA/GMA integration procedures.

197-11-230 Timing of an integrated GMA/SEPA process.

197-11-232 SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping.

197-11-235 Documents.

197-11-238 Monitoring.

197-11-250 SEPA/Model Toxics Control Act integration.

197-11-253 SEPA lead agency for MTCA actions.

197-11-256 Preliminary evaluation.

197-11-259 Determination of nonsignificance for MTCA remedial actions.

197-11-262 Determination of significance and EIS for MTCA remedial actions.

197-11-265 Early scoping for MTCA remedial actions.

197-11-268 MTCA interim actions.

[Ord. 1085 § 1, 1998.]

16.04.030 Definitions.

This section contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by LMC 16.04.040:

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.

197-11-721 Closed record appeal.

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.

197-11-750 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.

197-11-775 Open record hearing.

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.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

[Ord. 1085 § 1, 1998.]

16.04.040 Additional definitions.

All definitions relevant to this chapter shall be included in Chapter 21.90 LMC. Unless specifically defined, words or phrases used shall be interpreted so as to give them the meaning they have in common usage and to give this chapter its most reasonable application. [Ord. 1544 § 1 (Att. A), 2017; Ord. 1085 § 1, 1998.]

16.04.050 Designation of responsible official.

A. For those proposals for which the city is the lead agency, the responsible official shall be the community development director or his or her designee.

B. 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 LMC 16.04.020.

C. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.56 RCW. [Ord. 1085 § 1, 1998.]

16.04.060 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 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 decisions on the proposal. No city department shall prepare or require the 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.

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 initiated 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 192-11-942 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. 1085 § 1, 1998.]

16.04.070 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’s duties, the city’s responsible official must transmit 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 give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. [Ord. 1085 § 1, 1998.]

16.04.080 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. The responsible official shall make the determination if early environmental review shall be granted. This determination is not appealable. [Ord. 1268 (Exh. D), 2005; Ord. 1085 § 1, 1998.]

16.04.090 Categorical exemptions and threshold determinations.

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 by LMC 16.04.100 through 16.04.130:

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.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

RCW

43.21C.410 Battery charging and exchange station installation.

[Ord. 1398 § 1 (Exh. A), 2011; Ord. 1085 § 1, 1998.]

16.04.100 Flexible thresholds for categorical exemptions.

A. The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(d) based on local conditions and existing adopted rules and regulations which protect the environment:

1. Up to 20 residential dwelling units;

2. Up to 40,000 square feet for barn, loafing shed, farm equipment storage, produce storage, or packing structure;

3. Up to 30,000 square feet for office, school, commercial, recreational, service, storage building, or parking facilities; and up to 90 parking spaces;

4. Up to 90 spaces for parking lots;

5. Up to 1,000 cubic yards for landfills and excavations.

B. Flexible thresholds do not apply when: any projects are partially or wholly covered by water, located in the 100-year floodplain, or located in a floodway.

C. Regardless of the exemptions listed above, if any archaeological resources are unearthed during filling, grading, and/or any construction activities, all work that would affect the discovered resources shall be stopped, and the following authorities notified: tribal authorities of the Yakima and Colville Nations, as well as the Washington State Department of Archaeology and Historic Preservation, and the city of Leavenworth. No further work shall commence until appropriate steps have been taken to evaluate and, if required, protect the resources in accordance with applicable laws.

D. Flexible thresholds do not apply when: a rezone is involved; a license is needed for emissions to air or a discharge to water; or the proposal involves work wholly or partly on lands covered by water. [Ord. 1486 § 1 (Att. A), 2014; Ord. 1085 § 1, 1998.]

16.04.110 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 chapter 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 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.

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:

1. The city shall not give authorization for:

a. Any nonexempt action,

b. Any action that would have an adverse environmental impact, or

c. Any action that would limit the choice of alternatives;

2. 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 action(s) were not approved; and

3. 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. 1085 § 1, 1998.]

16.04.120 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.

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. 1085 § 1, 1998.]

16.04.130 Mitigated DNS.

A. As approved 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 10 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 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 timelines delineated within WAC 197-11-310 and RCW 43.21C.033:

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 a 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 either WAC 197-11-340(2) requiring a 14-day comment period and public notice; or WAC 197-11-355(5), which may require no additional comment period beyond the comment period on the notice of application.

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)(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. 1268 (Exh. D), 2005; Ord. 1085 § 1, 1998.]

16.04.140 Environmental impact statement (EIS).

The purpose of this section is to set forth the rules for preparing environmental impact statements for the city. The following sections are adopted by reference, as supplemented by LMC 16.04.150:

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 EIS contents on nonproject proposals.

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

197-11-444 Elements of environment.

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

197-11-450 Cost benefit analysis.

197-11-455 Issuance of draft EIS.

197-11-460 Issuance of final EIS.

[Ord. 1085 § 1, 1998.]

16.04.150 Preparation of EIS – Additional considerations.

A. Preparation of draft and final EIS’s (“DEIS” and “FEIS”) and draft and final supplemental EIS’s (“SEIS”) is the responsibility of the responsible official of the department under which the action will be taken. 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 (if approved by the city) or by consultants selected by the city. 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, billing procedures, financial arrangements for the consultant, and shall include approval process clarification for 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 which will aid the decision-making process; however, the applicant is not required to provide information that is not necessary to aid decision makers or is not required under this chapter or that is being requested from another agency if the request is not supported by the city. (This does not apply to information the city may request under another ordinance or statute.) [Ord. 1268 (Exh. D), 2005; Ord. 1085 § 1, 1998.]

16.04.170 Commenting.

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 by LMC 16.04.180 and 16.04.190:

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. 1085 § 1, 1998.]

16.04.180 Public notice.

A. 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.

B. 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 a SEPA document is issued concurrently with the notice of application, the public notice requirements for the notice of application will suffice to meet the SEPA public notice requirements.

2. If no public notice is otherwise required for the permit or approval, the city shall give notice of the DNS or DS by:

a. Posting the property, for site-specific, project proposals; or

b. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located for nonproject actions.

c. 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.

C. If a DNS is issued using the optional DNS process, the public notice requirements for the notice of application as supplemented by the requirements in WAC 197-11-355 will suffice to meet the SEPA public notice requirements.

D. 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

2. Posting the property, for site-specific, project proposals; or

3. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located for nonproject actions.

E. The city/county may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. [Ord. 1085 § 1, 1998.]

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

A. The responsible official or his or her designee 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 responsible official 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 the responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. Responses from the consulted agency shall be derived from the department head of the agency with general responsibility or expertise in regard to the issue to be discussed. Written comments shall be forwarded to the lead agency prior to a threshold determination, participation in scoping, and reviewing a DEIS. [Ord. 1085 § 1, 1998.]

16.04.200 Using existing environmental documents.

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

197-11-164 Planned actions – Definition and criteria.

197-11-168 Ordinances or resolutions designating planned actions – Procedures for adoption.

197-11-172 Planned actions – Project review.

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. 1085 § 1, 1998.]

16.04.210 SEPA and agency decisions.

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. 1085 § 1, 1998.]

16.04.220 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; 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 impact; 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.

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 an 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 a 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.

3. The city adopts by reference the goals, policies and purposes in the following city documents:

a. City of Leavenworth Comprehensive Land Use Plan;

b. Shoreline Master Program of the city;

c. City of Leavenworth Comprehensive Water System Plan;

d. City of Leavenworth Wastewater Facilities Plan;

e. City of Leavenworth Downtown Master Plan;

f. City of Leavenworth Transportation Plan;

g. Upper Valley Regional Trails Plan;

h. City of Leavenworth Water Distribution System and Sewer Collection System Master Plan, dated June 10, 2008;

i. LMC Title 5, Business Licenses and Regulations;

j. LMC Title 12, Streets, Sidewalks and Public Property;

k. LMC Title 13, Water and Sewers;

l. LMC Title 14, Development Standards;

m. LMC Title 15, Buildings and Construction;

n. LMC Title 16, Environment;

o. LMC Title 17, Subdivisions;

p. LMC Title 18, Zoning;

q. LMC Title 21, Development Code Administration;

r. Six-Year Transportation Improvement Program.

E. Except for permits and variances issued pursuant to the Leavenworth shoreline master program, 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 hearing examiner. 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 hearing examiner shall be on a de novo basis. [Ord. 1356 § 1 (Att. A), 2010; Ord. 1268 (Exh. D), 2005; Ord. 1085 § 1, 1998.]

16.04.230 Appeals.

The city establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

A. Only Threshold Determinations May Be Appealed. Only final threshold determinations, in the form of a determination of significance (DS), mitigated determination of nonsignificance (MDNS) or a determination of nonsignificance (DNS), shall be appealable to the hearing examiner; provided, however, when the threshold determination is a DS which has been agreed to by the proponent, it shall not be appealable.

B. Who May Appeal. Any person aggrieved by a threshold determination may appeal; provided, however, if there is a comment period required by WAC 197-11-340, only those persons who submit written comments during the comment period may appeal the threshold determination.

C. Time to Appeal. A written notice of appeal, meeting the requirements of subsection (D) of this section, and the appeal fee must be received by the community development department within 14 calendar days of the date of issuance of the threshold determination or, if there is a comment period under WAC 197-11-340, within seven calendar days of the last day of the comment period. If the last day of the appeal period is a holiday or a weekend, the appeal must be filed by 5:00 p.m. on the first weekday following such holiday or weekend.

D. Contents of an Appeal. A written notice of appeal shall contain the following information:

1. Name, mailing address and telephone number of the appellant and his/her representative, if any;

2. A copy of the DS, MDNS or DNS;

3. A concise statement of the factual and legal basis for the appeal citing specifically the alleged errors in the decision;

4. The specific relief sought; and

5. A statement describing the appellant’s standing to appeal pursuant to subsection (B) of this section.

E. Timing of the Public Hearing on the Appeal. Public hearings on appeals of a DS, MDNS or DNS shall occur prior to any decision on the underlying proposal and shall be heard by the hearing examiner. If the underlying proposal is reviewed by the hearing examiner, the SEPA appeal may be heard in concurrence with the public hearing on the underlying proposal.

F. Public Notice of Appeal Before the Hearing Examiner. When the city receives a timely notice of appeal and timely filing of appropriate fees under this chapter, the city shall give public notice of such appeal by mailing notice to:

1. The appellant, project sponsor, the environmental review officer, and any individuals or organizations who have submitted a written request for notice of SEPA appeals to the community development department;

2. Adjacent property owners within 300 feet of the project, or such greater distance as specified in the notice provisions of the underlying governmental action, as of the time the threshold determination is issued;

3. Agencies who have received written notice of the threshold determination; and

4. The appropriate media, as determined by the community development department, but only if the appeal is of a nonproject action.

G. Dismissal of Appeal. The hearing examiner may summarily dismiss an appeal of a threshold determination for a project action without hearing when such appeal is determined by the examiner to be without merit on its face, frivolous or brought merely to secure a delay, or that the appellant lacks standing to appeal, i.e., is not an aggrieved party. Such dismissal, if any, shall occur within 10 calendar days of the filing of the appeal.

H. Prehearing Conference. A prehearing conference shall be held between the appellant, the project sponsor and the environmental review officer within 15 calendar days of the filing of an appeal of a threshold determination for a project action. The purpose of the prehearing conference is to discuss process, settlement, and/or summary disposition, clarification and jurisdiction of issues raised in the notice of appeal.

I. Public Hearing on Appeal. The hearing examiner shall conduct a public hearing into whether or not the city complied with the procedural requirements of Chapter 43.21C RCW, the State Environmental Policy Act, and Chapter 197-11 WAC in issuing the DS, MDNS or DNS as follows:

1. The hearing examiner shall review all appeals by reviewing all admissible documentary evidence, arguments from any interested person and testimony given under oath;

2. The hearing examiner shall give substantial weight to the environmental review officer’s determination;

3. The hearing may be continued from time to time without further mailed or delivered notice; and

4. The hearing examiner shall maintain an electronically recorded tape of the testimony and arguments presented and a record of the documents presented.

J. Decision by Hearing Examiner. The hearing examiner shall render a written decision upon the appeal of a threshold determination for project actions within 10 working days from the conclusion of the hearing, unless a longer period is agreed upon by the appellant, applicant, the city, and the hearing examiner, as follows:

1. The decision shall contain an analysis of why the hearing examiner rejected or accepted the threshold determination, a synopsis of the testimony and arguments presented, the examiner’s findings of fact, and conclusions of law.

2. Within five working days of its issuance, copies of the decision shall be mailed or delivered to the city, applicant, the appellant, the environmental review officer, and all parties of record.

K. Hearing Examiner’s Decision on Appeals of Threshold Determinations for Project Actions Is Final. The decision of the hearing examiner on an appeal of a threshold determination for a project action is final. The hearing examiner shall not entertain motions for reconsideration. The decision of the hearing examiner may only be appealed to superior court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075, the State Environmental Policy Act and subsection (E) of this section.

L. Recommendation by Hearing Examiner on Appeals of Threshold Determinations for Nonproject Actions. The hearing examiner shall render a written recommendation on an appeal of a threshold determination for a nonproject action within 10 working days from the conclusion of the hearing unless a longer period is agreed upon by the applicant, the city, and the hearing examiner as follows:

1. The recommendation shall contain an analysis of why the hearing examiner rejected or accepted the threshold determination, a synopsis of the testimony and arguments presented, the examiner’s findings of fact, and conclusions of law.

2. Within five working days of its issuance, copies of the recommendation shall be mailed or delivered to the applicant, the appellant, the environmental review officer, the city, and all parties of record.

M. Effect of the Hearing Examiner’s Recommendation on Appeals of Threshold Determinations for Nonproject Actions. The recommendation of the hearing examiner is a recommendation only and the final decision with respect to the appeal of a threshold determination for a nonproject action shall be made by the city council.

N. City Council’s Action Upon Issuance of Recommendation on Appeals of Threshold Determinations for Nonproject Actions. Upon issuance of the hearing examiner’s recommendation, the following actions shall occur:

1. The city council shall promptly set a public meeting to consider the appeal and recommendation;

2. Notice of the time, date, place and nature of the meeting shall be mailed to the applicant, the appellant, the environmental review officer and to all parties of record;

3. The council shall conduct a public meeting and its review of the appeal and the hearing examiner’s recommendation shall be limited to the record created before the hearing examiner;

4. The council may continue the public meeting from time to time without further notice;

5. The council shall decide the appeal at the meeting or at a continuation thereof;

6. The decision of the council shall be reported in its official minutes. The council shall also prepare written findings and conclusions or adopt the hearing examiner’s findings and conclusions as its own; and

7. The city clerk-treasurer shall transmit a copy of the written decision to the appellant, the applicant and all parties of record.

O. City Council’s Decision Final. The decision of the council on a threshold determination appeal for a nonproject action is final. The board shall not entertain motions for reconsideration. The decision of the board may only be appealed to superior court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075, the State Environmental Policy Act, and subsection (E) of this section.

P. Parties of Record. Parties of record are persons who have:

1. Given oral or written comments to the hearing examiner during or in connection with a public hearing; or

2. Listed their names, as persons wishing a copy of the decision, on a sign-up sheet which is available during the public hearings.

Q. Effect of an Appeal. If there is a pending administrative appeal of a threshold determination for a project action, the lead agency may continue to process the application on the underlying action, but shall not issue its final decision or permit any action until the hearing examiner has taken final action on the appeal.

R. For any appeal under this subsection, the city shall provide for a record of the appeal proceeding which consists of:

1. Findings and conclusions;

2. Testimony under oath;

3. A taped or written transcript.

S. The procedural determination by the city’s responsible official shall carry substantial weight in any appeal proceeding.

T. Time to Commence a Judicial Appeal.

1. Judicial appeals of final decisions made under this chapter shall be commenced within the same time period provided for appealing the underlying governmental action; provided, however, that if there is no time period for appealing the underlying governmental action, judicial appeals shall be commenced within 21 calendar days.

2. The time for commencing a judicial appeal shall begin to run on the issuance of the final written decision on the threshold determination.

3. For the purposes of this subsection, the date of issuance is three days after the final written decision on the threshold determination is mailed. [Ord. 1268 (Exh. D), 2005.]

16.04.240 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, applicant or proponent pursuant to RCW 43.21C.080. [Ord. 1085 § 1, 1998.]

16.04.250 Categorical exemptions.

The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including flexible thresholds, and use of exemptions:

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

[Ord. 1085 § 1, 1998.]

16.04.270 Agency compliance.

This section contains 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 the following sections by reference, as supplemented by WAC 173-806-050 through 173-806-053 and LMC 16.04.280:

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 the county.

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. 1085 § 1, 1998.]

16.04.280 Fees.

The city shall adopt, by resolution, a schedule of fees for its activities in accordance with the provisions of this chapter:

A. Threshold Determination. For every environmental checklist which does not require public notice, which the city reviews as lead agency, the city shall collect a fee as specified by resolution from the proponent of the proposal prior to undertaking the threshold determination. For every environmental checklist which requires public notice, an additional advertising fee set by resolution shall be added to initial fees for each public notice which is required. Additional advertising fees shall be collected for draft EIS, final EIS notice, supplemental notice, public hearing notice for an EIS hearing which is not included in the DEIS notice and public notice for any appeal of a DS, DNS or FEIS. All fees shall be collected prior to initiation of any phase of the environmental review process. All fees may be incorporated in the quarterly billing for expenses in the case of an environmental impact statement.

The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee. When the city assists with the environmental checklist at the applicant’s request or under LMC 16.04.120, an additional fee, specified by resolution, shall be collected.

B. Environmental Impact Statement and Mitigated DNS.

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

2. For all proposals requiring an EIS or a mitigated DNS in which the city is the lead agency and for which the responsible official determines that an EIS or mitigated DNS shall be prepared, an initial fee set by resolution plus an additional amount equal to the actual cost of staff time and expenses incurred in supervision of the preparation of the document, shall be charged to the proponent on a monthly basis; provided, that such total fee shall not exceed $20,000 without express authorization from the city council.

3. The responsible official may determine that the city will contract directly with a consultant for preparation of an EIS, or a mitigated DNS, or a portion thereof, 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.

The city shall collect fees per the city’s fee schedule for all staff work related to the preparation (including administration/consultation) of an EIS whether the EIS is prepared by a consultant or by staff.

4. If a proposal is modified so that an EIS or mitigated DNS is no longer required, the responsible official shall refund any fees collected under subsections (B)(1) through (3) of this section which remain after incurred costs are paid.

C. The city shall 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.

D. The city shall not collect a fee for performing its duties as a consulted agency.

E. 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 42.56 RCW. [Ord. 1268 (Exh. D), 2005; Ord. 1085 § 1, 1998.]

16.04.290 Forms.

The city adopts the following forms and 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. 1085 § 1, 1998.]

Prior ordinance history: Ords. 753, 847, 872 and 915.