Chapter 15.06 ENVIRONMENTAL POLICIES

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 SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. (Ord. 3012 § 2, 2000).

Part II. General Requirements

15.06.020 Purpose of this part and adoption by reference (WAC 173-806-020).

The purpose of this chapter is to establish a clearly understood and effective set of policies and procedures for implementing the State Environmental Policy Act as set forth in Chapter 43.21C RCW.

The SEPA rules, Chapter 197-11 WAC, are to be used in conjunction with this chapter. As contemplated by such rules (WAC 197-11-904), the sections of the SEPA rules hereinafter set forth by number are adopted by reference as if fully set forth. Copies of the statute and the rules (Chapter 197-11 WAC) shall be kept available for public inspection in the development services department.

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

WAC

197-11-030 Policy.

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 exiting plans, laws and regulations.

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.

197-11-210 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 action.

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

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

197-11-268 MTCA interim actions.

(Ord. 3092 § 1, 2002; Ord. 3012 § 2, 2000).

15.06.025 SEPA policies.

The city designates the following general policies as the basis for the city’s exercise of authority pursuant to this chapter:

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.

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 incorporates by reference all policies in the cited city codes, ordinances, resolutions and plans, and all amendments to them in effect prior to the date of a technically complete application of any building permit or preliminary plat, or prior to issuance of a DNS or DEIS for any other action. These documents include, but are not limited to, the following: Mount Vernon comprehensive plan and incorporated elements, zoning code, UGA development standards, wetland and stream plans, impact fees, Uniform Building Code, International Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, Uniform Code for Abatement of Dangerous Buildings, shoreline management master program, floodplain management code, subdivision code, six-year transportation improvement program, comprehensive transportation plan, storm water comprehensive plan, water and sewer utility regulations and planning, park and recreation plans, coordinated water system plan, Washington State Ventilation and Indoor Air Quality Code, Washington State Energy Code, Uniform Housing Code, Skagit County Coordinated Water System Plan, Puget Power’s Skagit County GMA Electric Facilities Plan, Skagit County Needs Assessment Plan, Countywide Air, Rail, Water and Port Transportation System Study.

D. Through the project review process:

1. If the applicable regulations require studies that adequately analyze all of the project’s specific probable adverse environmental impacts, additional studies under this chapter will not be necessary on those impacts;

2. If the applicable regulations require measures that adequately address such environmental impacts, additional measures would likewise not be required under this chapter; and

3. If the applicable regulations do not adequately analyze or address a proposal’s specific probable adverse environmental impacts, this chapter provides the authority and procedures for additional review. (Ord. 3284 § 3, 2005; Ord. 3012 § 2, 2000).

15.06.030 Additional definitions (WAC 173-806-030).

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

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

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

C. “Closed record” approval hearing means an administrative hearing to approve or deny a project permit that is on the record to the city council following an open record predecision hearing (as defined by WAC 197-11-775 and this part) before the planning commission or hearing examiner.

D. “Open record hearing” means an open record hearing (as defined by WAC 197-11-775) which is held before the planning commission or hearing examiner prior to the closed record approval hearing before the city council. (Ord. 3012 § 2, 2000).

15.06.040 Designation of responsible official (WAC 173-806-040).

A. For those proposals for which the city is the lead agency, the responsible official shall be the development services director whose office is located at City Hall located at 910 Cleveland Avenue, P.O. Box 809, Mount Vernon, Washington, 98273, or such person as the city development services director shall designate.

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 WAC 173-806-020.

C. The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. (Ord. 3170 § 1, 2004; Ord. 3169 § 1, 2004; Ord. 3092 § 32, 2002; Ord. 3012 § 2, 2000).

15.06.050 Lead agency determination and responsibilities (WAC 173-806-050).

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, 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 department or agency is in the process of determining the lead agency.

B. When the city is the lead agency for a proposal, the development services department shall determine the responsible official who shall supervise compliance with the threshold determination requirements, and if an environmental impact statement (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 determination of nonsignificance (DNS) or the final EIS of the lead agency in making decisions on the proposal. No city 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 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 197-11-253 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.

E. When the city is lead agency for a Model Toxic Control Act (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 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 who receives the comment letters and how copies of the comment letters will be distributed to the other agency. (Ord. 3092 § 1, 2002; Ord. 3012 § 2, 2000).

15.06.080 Additional timing considerations (WAC 173-806-058).

A. For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the city’s staff recommendation to the appropriate advisory body, if any.

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. Sufficient information shall be required from the applicant to enable the responsible official to adequately fulfill his responsibility under SEPA and this chapter consistent with the provisions of WAC 197-11-100 and 197-11-335, which sections are adopted by reference in this chapter. (Ord. 3012 § 2, 2000).

Part III. Categorical Exemptions and Threshold Determinations

15.06.090 Purpose of this part and adoption by reference (WAC 173-806-065).

This part 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 part also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections of Chapter 197-11 WAC by reference, as supplemented in this part:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination required.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

197-11-340 Determination of nonsignificance (DNS).

197-11-350 Mitigated DNS.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 3170 § 1, 2004; Ord. 3012 § 2, 2000).

15.06.095 Flexible thresholds for categorical exemptions.

A. The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(c) based on local conditions, except when undertaken wholly or partly on critical areas defined under Chapter 36.70A RCW:

1. For residential dwelling units in WAC 197-11-800(1)(b)(i): up to 10 dwelling units, cumulative.

2. For agricultural structures in WAC 197-11-800(1)(b)(ii): up to 30,000 square feet, cumulative.

3. For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii): up to 12,000 square feet and up to 40 parking spaces, cumulative.

4. For parking lots in WAC 197-11-800 (1)(b)(iv): up to 40 parking spaces, cumulative.

5. For landfills and excavations in WAC 197-11-800(1)(c)(v): up to 500 cumulative cubic yards.

B. Whenever the city establishes new exempt levels under this section, it shall send them to the Department of Ecology, Headquarters Office, Olympia, Washington, 98504 under WAC 197-11-800(1)(c). (Ord. 3881 § 3, 2023).

15.06.097 Emergencies.

Actions which must be undertaken immediately, or within a time frame too short to allow full compliance with this chapter, to avoid an immediate threat to public health and safety, to prevent an immediate danger to public or private property, or to prevent an imminent threat of serious environmental degradation, shall be exempt from the procedural requirements of this chapter. The responsible official shall determine on a case-by-case basis emergency actions which satisfy the general requirements of this section. (Ord. 3012 § 2, 2000).

15.06.100 Use of exemptions (WAC 173-806-080).

A. In determining whether or not a proposal is exempt, the responsible official 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.

B. 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. 3012 § 2, 2000).

15.06.110 Environmental checklist (WAC 173-806-090).

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, at the applicants costs under the current fee schedule, 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.

D. 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. 3012 § 2, 2000).

15.06.120 Mitigated DNS (WAC 173-806-100).

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 calendar 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, 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 storm water runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot storm water 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. Any mitigated DNS issued under WAC 197-11-340(2) shall require 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.

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. 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 of 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. 3012 § 2, 2000).

Part IV. Environmental Impact
Statement (EIS)

15.06.130 Purpose of this part and adoption by reference (WAC 173-806-110).

This part contains the rules for preparing environmental impact statements. The city adopts the following sections of Chapter 197-11 WAC 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 (optional).

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

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

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

197-11-444 Elements of the environment.

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

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 3012 § 2, 2000).

15.06.140 Preparation of EIS – Additional considerations (WAC 173-806-120).

A. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the engineering 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.

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

C. The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.) (Ord. 3012 § 2, 2000).

15.06.143 Additional elements to be covered in an EIS (WAC 173-806-125).

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:

A. Economy;

B. Cost-benefit analysis;

C. Social policy analysis. (Ord. 3012 § 2, 2000).

Part V. Commenting

15.06.145 Purpose.

This part contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. (Ord. 3012 § 2, 2000).

15.06.150 Adoption by reference.

The city adopts the following sections of Chapter 197-11 WAC by reference:

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.

197-11-510 Public notice.

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. 3012 § 2, 2000).

15.06.160 Public notice (WAC 173-806-130).

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 the city shall give public notice as follows:

1. 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).

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, and posting in the City Hall; and

b. Publishing notice in the city’s newspaper of record;

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.

C. 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(1)(b).

D. Whenever the city issues a DEIS under WAC 197-11-455 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 proposals; or posting in City Hall, for non-site-specific proposals; and

3. Publishing notice in the city’s newspaper of record.

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

F. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 3012 § 2, 2000).

15.06.170 Designation of official to perform consulted agency responsibilities for the city (WAC 173-806-140).

A. The development services director 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. The development services director 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. 3092 § 1, 2002; Ord. 3012 § 2, 2000).

Part VI. Using Existing Environmental Documents

15.06.175 Purpose.

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. (Ord. 3012 § 2, 2000).

15.06.180 Adoption by reference.

The city adopts the following sections of Chapter 197-11 WAC 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. 3012 § 2, 2000).

Part VII. SEPA and Agency Decisions

15.06.190 Purpose.

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. (Ord. 3012 § 2, 2000).

15.06.195 Adoption by reference.

The city adopts the following sections of Chapter 197-11 WAC 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.

197-11-721 Closed record appeal.

197-11-722 Consolidated appeal.

(Ord. 3012 § 2, 2000).

15.06.200 Substantive authority (WAC 173-806-160).

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

B. The city may attach conditions to a permit or approval for a proposal so long as:

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

2. Such conditions are in writing; and

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

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

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

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; 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 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 it 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 uses of the environment without degradation, risk to 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 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 a renewable resource and approach the maximum attainable recycling of depletable resources.

E. 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.

F. The city designates and adopts by reference all policies in the cited city codes, ordinances, resolutions and plans, and all amendments to them in effect prior to the date of a technically complete application of any building permit or preliminary plat, or prior to issuance of a DNS or DEIS for any other action. These documents include, but are not limited to, the following: Mount Vernon comprehensive plan and incorporated elements, zoning code, UGA development standards, wetland and stream plans, impact fees, Uniform Building Code, International Fire Code, Uniform Plumbing Code, Uniform Mechanical Code, Uniform Code for Abatement of Dangerous Buildings, shoreline management master program, floodplain management code, subdivision code, six-year transportation improvement program, comprehensive transportation plan, storm water comprehensive plan, water and sewer utility regulations and planning, park and recreation plans, coordinated water system plan, Washington State Ventilation and Indoor Air Quality Code, Washington State Energy Code, Uniform Housing Code, Skagit County Coordinated Water System Plan, Puget Power’s Skagit County GMA Electric Facilities Plan, Skagit County Needs Assessment Plan, Countywide Air, Rail, Water and Port Transportation System Study. (Ord. 3284 § 4, 2005; Ord. 3012 § 2, 2000).

15.06.210 Notice/statute of limitations (WAC 173-806-173).

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 pursuant to RCW 43.21C.080. (Ord. 3012 § 2, 2000).

15.06.215 SEPA appeals (WAC 173-806-170).

A. It is the purpose of this chapter to combine environmental considerations with public decisions, and for this reason, any appeal brought under this chapter shall be linked to a specific governmental action. Appeals under this chapter are not intended to create a cause of action unrelated to a specific governmental action.

B. The appellate procedures provided for by RCW 43.21C.060, which provides for an appeal to a local legislative body of any decision by a non-elected official conditioning or denying a proposal under authority of SEPA, are formally eliminated. The administrative appeal procedures provided by this part shall be construed consistently with RCW 43.21.075, Chapter 36.70B RCW, and WAC 197-11-680.

C. Appeals under the provisions of this part shall be limited solely to those actions and/or determinations listed below. No administrative appeals shall be allowed for other actions and/or determinations taken or made pursuant to this chapter (such as lead agency determination, scoping, draft EIS adequacy, etc.)

1. “Procedural appeals” which shall consist of an appeal of the responsible official’s compliance with the provisions of SEPA, the SEPA rules, and this chapter with respect to the following:

a. Determination of nonsignificance;

b. Determination of significance;

c. Adoption or issuance of a final environmental impact statement.

2. “Substantive appeals” which shall consist of an appeal of an action or omission with respect to the conditioning or denying of a proposal under the substantive authority set forth in MVMC 15.06.200.

D. Except as provided in subsection E of this section, an appeal under this section shall consolidate any SEPA appeal with a hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer or body. The hearing or appeal shall be one at which the hearing officer or body will consider either the agency’s decision or a recommendation on the proposed underlying governmental action. If no hearing or appeal on the underlying governmental action is otherwise provided, then no SEPA appeal is allowed under this section, except as allowed under subsection E of this section.

E. The following appeals of SEPA procedural or substantive determinations need not be consolidated with a hearing or appeal on the underlying governmental action:

1. An appeal of a determination of significance;

2. An appeal of a procedural determination made by the city when the city is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;

3. An appeal of a procedural determination made by an city on a nonproject action.

F. All procedural and substantive SEPA appeals provided under this section shall be initiated by filing a written notice of SEPA administrative appeal with the development services director, accompanied with the applicable appeal fee. No additional appellate fee shall be charged in conjunction with a hearing on the underlying permit or approval.

1. The notice of appeal required by this section shall include, at a minimum:

a. The name and address of the party or agency filing the appeal;

b. An identification of the specific proposal and specific SEPA actions, omissions, conditions or determinations for which appeal is sought;

c. A statement of the particular grounds or reasons for the appeal.

2. The director shall arrange to conduct the SEPA appeal in conjunction with a hearing or appeal on the underlying permit or approval, where required to consolidate the SEPA appeal with a hearing on the underlying governmental action. Where consolidation is not required, the director shall schedule the hearing to be conducted within 90 days of the date of filing the notice of appeal, and payment of fee.

G. SEPA procedural appeals shall be initiated and conducted in the manner set forth below:

1. An appeal to the issuance of a determination of nonsignificance (DNS), mitigated determination of nonsignificance (MDNS), may be filed by any agency or aggrieved person as follows:

a. For proposals which may be approved by an administrative official without public hearing, an appeal shall be filed within 10 calendar days following the last day of the comment period. Such SEPA appeal shall be heard in conjunction with the appeal of the underlying permit or approval, where such appeal is allowed; provided, that if no administrative appeal of the underlying permit or approval is otherwise provided for, and consolidation is not required by subsection D of this section, an appeal of the DNS/FEIS shall be heard and decided in an open record hearing by the hearing examiner appointed in Chapter 2.34 MVMC. The decision of the hearing examiner on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

b. For proposals which may only be approved by open record hearing or open record pre-decision hearing (recommendation) before the hearing examiner or planning commission, an appeal shall be filed within 10 calendar days following the last day of the comment period, or where no comment period is required, then within 10 days following the date of issuance or adoption of the DNS/FEIS, and shall be heard and decided in open record hearing by the hearing examiner or planning commission in conjunction with the decision or recommendation on the underlying proposal. The decision of the hearing examiner or planning commission on the SEPA procedural appeal shall be final and not subject to further administrative appeal.

2. An appeal to a determination of significance (DS) may be filed by the applicant within 10 days of the issuance of the DS/scoping notice. The appeal shall be heard in open record hearing and decided by a hearing examiner appointed pursuant to Chapter 2.34 MVMC, whose decision shall be final and not subject to further administrative appeal.

3. An appeal must be filed within 10 days of issuance of the final environmental impact statement (FEIS).

4. The SEPA procedural determination of the responsible official shall be entitled to substantial weight, and the appellant shall bear the burden to establish a violation of SEPA, the SEPA rules, or the provisions of this chapter.

5. A SEPA procedural determination shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this chapter, unless a SEPA procedural appeal is filed in accordance with this part.

H. SEPA substantive appeals shall be initiated and conducted in the manner set forth below:

1. For proposals subject to final administrative action, approval, or recommendation by a nonelected administrative official or tribunal for which no administrative appeal is otherwise provided, and for which consolidation is not required by subsection D of this section, any agency or aggrieved person may file a substantive SEPA appeal within 10 days of the issuance of the administrative decision approving, conditioning, or denying the proposal on the basis of substantive SEPA authority. Such substantive SEPA appeal shall be heard and decided by the hearing examiner appointed in Chapter 2.34 MVMC in an open record hearing, unless the proposal is a project permit which has been subject to a previous open record hearing, in which case the SEPA appeal hearing shall be a closed record hearing. The substantive SEPA appeal shall be heard in conjunction with any procedural SEPA appeal. The decision of the hearing examiner on the SEPA substantive appeal shall be final and not be subject to further administrative appeal.

2. For all proposals subject to final administrative action, approval, or recommendation, by a nonelected administrative official, for which an administrative appeal or further approval hearing is otherwise provided or required, any agency or aggrieved person may file a substantive SEPA appeal within 10 days of the issuance of the administrative decision approving, conditioning, or denying the proposal on the basis of substantive SEPA authority; provided, that if the proposal is a project permit, a substantive SEPA appeal shall be filed within 10 days after issuance of the notice of decision. Any substantive SEPA appeal shall be conducted in the same manner and with the same process as otherwise provided for the appeal or approval hearing of the underlying administrative action.

3. The SEPA substantive determination to condition or deny a proposal shall be deemed to be conclusively in compliance with SEPA, the SEPA rules, and the provisions of this chapter, unless a SEPA substantive appeal is filed in accordance with this part.

I. How to Appeal. The appeal must be in the form of a written notice of appeal, and must contain a brief and concise statement of the matter being appealed, the specific components or aspects that are being appealed, the appellant’s basic rationale or contentions on appeal, and a statement demonstrating standing to appeal. The appeal may also contain whatever supplemental information the appellant wishes to include.

The appeal shall also contain the following:

1. The name and mailing address of the appellant and the name and address of his/her representative, if any;

2. The appellant’s legal residence or principal place of business;

3. A copy of the decision which is appealed;

4. The grounds upon which the appellant relies;

5. A concise statement of the factual and legal reasons for the appeal;

6. The specific nature and intent of the relief sought;

7. A statement that the appellant has read the appeal and believes the contents to be true, followed by his/her signature and the signature of his/her representative, if any. If the appealing party is unavailable to sign the appeal, it may be signed by his/her representative.

J. Fees. The person filing the appeal shall include with the letter of appeal the fee as established by ordinance.

K. Procedures for Appeal Hearing.

1. Notice of the Appeal Hearing.

a. Content. The SEPA official shall prepare a notice of the appeal containing the following:

i. The file number and a brief written description of the matter being appealed.

ii. A statement of the scope of the appeal including a summary of the specific factual findings and conclusions disputed in the letter of appeal.

iii. The time and place of the public hearing on the appeal.

iv. A statement of who may participate in the appeal.

v. A statement of how to participate in the appeal.

b. Distribution. At least 15 calendar days before the hearing on the appeal, the SEPA official shall send a copy of this notice to each person who received a copy of the threshold determination and any person who submitted written comments on, or an appeal of, the threshold determination.

c. The notice of appeal may be combined with the hearing notice for the underlying project permit, if applicable.

L. Participation in the Appeal. Only those persons with legal standing are entitled to appeal the threshold determination and may participate in the appeal. Participation includes the following:

1. By submitting written testimony to the development services department within the timeline established.

2. By appearing in person, or through a representative, at the hearing and submitting oral or written testimony directly to the hearing body. The hearing body may reasonably limit the extent of the oral testimony to facilitate the orderly and timely conduct of the hearing.

M. Staff Report on the Appeal.

1. Content. The SEPA official shall prepare a staff report containing the following:

a. The SEPA threshold determination.

b. All written comments submitted to the responsible official.

c. The letter of appeal.

d. All written comments on the appeal received by the development services department from persons entitled to participate in the appeal and within the scope of the appeal.

e. An analysis of the specific factual findings and conclusions disputed in the letter of appeal.

2. This report may be combined with the staff report on the underlying project permit, if applicable.

3. Distribution will take place at least seven calendar days before the hearing, the development services department shall distribute copies of the staff report as follows:

a. A copy will be sent to the hearing body hearing the appeal as specified.

b. A copy will be sent to the applicant.

c. A copy will be sent to the person who filed the appeal.

N. Continuation of the Hearing. The hearing body may continue the hearing if, for any reason, it is unable to hear all of the public comments on the appeal or if it determines that it needs more information within the scope of the appeal. If, during the hearing, the hearing body announces the time and place of the next hearing on the matter, no further notice of that hearing need be given, beyond that required by the Open Public Meeting Act.

O. Decision on the Appeal.

1. General. The hearing body shall consider all information and material within the scope of the appeal submitted by persons entitled to participate in the appeal. The hearing body shall either affirm or change the findings and conclusions of the responsible official that were appealed. Based on the hearing body’s findings and conclusions, it shall either:

a. Affirm the decision being appealed; or

b. Reverse the decision being appealed; or

c. Modify the decision being appealed.

2. Issuance of Written Decision. Within 10 working days after the public hearing, the hearing body shall issue a written decision on the appeal. Within four calendar days after the decision is issued, the hearing body shall distribute the decision as follows:

a. A copy will be mailed to the applicant.

b. A copy will be mailed to the person who filed the appeal.

c. A copy will be mailed to all other persons of record or agencies who participated in the appeal.

P. Additional Appeal Procedures.

1. The matters to be considered and decided upon in the appeal are limited to the matters raised in the notice of appeal.

2. The decision of the responsible official shall be accorded substantial weight.

3. All testimony will be taken under oath.

4. The decision of the hearing body hearing the appeal shall be the final decision on any appeal of a threshold determination including a mitigated determination of nonsignificance.

Q. Dismissal of Appeal. The hearing examiner may summarily dismiss an appeal without hearing when such an appeal is determined by the hearing examiner to be without merit on its face, frivolous, or brought merely to secure a delay, or that the appellant lacks legal standing to appeal.

R. Effect of Appeal. The filing of an appeal of a threshold determination or adequacy of a final environmental impact statement (FEIS) shall stay the effect of such determination or adequacy of the FEIS and no major action in regard to a proposal may be taken during the pendency of an appeal and until the appeal is finally disposed of by the hearing examiner or other hearing body. A decision to reverse the determination of the responsible SEPA official and uphold the appeal shall further stay any decision, proceedings, or actions in regard to approval.

S. Withdrawal of Appeal. An appeal may be withdrawn, only by the appellant, by written request filed with the development services department (CEDD). The CEDD shall inform the hearing examiner or other hearing body of the withdrawal request. If the withdrawal is requested before the response of the responsible SEPA official, or before serving notice of the appeal, such request shall be permitted and the appeal shall be dismissed without prejudice by the Hearing Examiner or other hearing body, and the filing fee shall be refunded.

T. Standard of Review. The hearing examiner or other hearing body may affirm the decision of the responsible official or the adequacy of the environmental impact statement, or remand the case for further information; or the hearing examiner or other hearing body may reverse the decision if the administrative findings, inferences, conclusions, or decisions are:

1. In violation of constitutional provisions as applied; or

2. The decision is outside the statutory authority or jurisdiction of the city; or

3. The responsible official has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure; or

4. In regard to challenges to the appropriateness of the issuance of a DNS clearly erroneous in view of the public policy of the Act (SEPA); or

5. In regard to challenges to the adequacy of an EIS shown to be inadequate employing the “rule of reason.”

U. Evidence – Burden of Proof. In each particular proceeding, the appellant shall have the burden of proof, and the determination of the responsible SEPA official shall be presumed prima facie correct and shall be afforded substantial weight. Appeals shall be limited to the records of the responsible official.

V. Judicial Appeal.

1. Any available administrative appeal provided under this section must be utilized by an agency or aggrieved person prior to initiating judicial review of any SEPA action, omission, or determination made or taken under this chapter.

2. A judicial appeal of any SEPA action, omission, or determination made or taken under this chapter must be filed within the time limitations established by any statute or ordinance for appeal of the underlying governmental action.

3. The city shall give official notice of the date and place for commencing a judicial appeal, in accordance with WAC 197-11-680(5), where there is a statute or ordinance establishing a time limit for commencing judicial appeal. (Ord. 3092 § 1, 2002; Ord. 3012 § 2, 2000).

Part VIII. Definitions

15.06.220 Purpose.

This part contains uniform usage and definitions of terms under SEPA. (Ord. 3012 § 2, 2000).

15.06.225 Adoption by reference.

The city adopts the following sections of Chapter 197-11 WAC by reference:

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.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 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. 3012 § 2, 2000).

Part IX. Agency Compliance

15.06.240 Purpose.

This part contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating categorical exemptions that do not apply within critical areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. (Ord. 3012 § 2, 2000).

15.06.245 Adoption by reference.

The city adopts the following sections of Chapter 197-11 WAC 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 Lead agency for private projects with one agency with jurisdiction.

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

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a 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. 3012 § 2, 2000).

15.06.250 Fees.

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

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

B. Environmental Impact Statement.

1. 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 as required by the city fee schedule from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

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

3. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under this subsection which remain after incurred costs are paid.

C. The city may collect from the applicant 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 42.17 RCW. (Ord. 3012 § 2, 2000).

Part X. Forms

15.06.280 Purpose.

The purpose of this part is to provide for uniform submittal of information on standardized forms and applications. (Ord. 3012 § 2, 2000).

15.06.285 Adoption by reference.

The city adopts the following forms and sections of Chapter 197-11 WAC by reference:

WAC

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of nonsignificance (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. 3012 § 2, 2000).