Chapter 17.84 IMPLEMENTING THE STATE ENVIRONMENTAL POLICY ACT

A. 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.

B. This chapter contains the city’s SEPA procedures and policies.

C. The SEPA Rules, Chapter 197-11 WAC must be used in conjunction with this chapter. (Ord. 476 § 2 (part), 1984)

17.84.015 Codes adopted by reference.

Unless otherwise specifically stated therein, all codes which are adopted or referenced in this chapter shall be as such codes now exist or are hereinafter amended. (Ord. 977 § 1, 1999)

II. General Requirements

17.84.020 Purpose of this article and adoption by reference.

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

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 action during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

(Ord. 476 § 2 (part), 1984)

17.84.030 Additional definitions.

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

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

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

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

D. “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated DNS procedures). (Ord. 476 § 2 (part), 1984)

17.84.040 Designation of responsible official.

A. For those proposals for which the city is the lead agency, the responsible official shall be the city planner.

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 EIS, and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that are adopted by reference in Section 17.84.020.

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.

D. Public information on SEPA can be obtained by contacting the city planner at City Hall in the city or telephoning 355-4141. (Ord. 476 § 2 (part), 1984)

17.84.050 Lead agency determination and responsibilities.

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

B. When the city is the lead agency for a proposal, the department receiving the application shall forward it to the responsible official who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.

C. When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No 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 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fifteen-day time period. Any such petition on behalf of the city shall be initiated by the responsible official.

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

F. The responsible official, when 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. 476 § 2 (part), 1984)

17.84.053 Transfer of lead agency status to a state agency.

For any proposal for a private project where the city would be the lead agency and for which one or more state agencies have jurisdiction, the city’s responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the city’s responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the city shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 476 § 2 (part), 1984)

17.84.055 Additional considerations in time limits applicable to the SEPA process.

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

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

B. Threshold Determinations. The city should complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within fifteen days of the date an applicant’s adequate application and completed checklist are submitted. (Ord. 476 § 2 (part), 1984)

17.84.058 Additional timing considerations.

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

B. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 476 § 2 (part), 1984)

17.84.059 Integration with GMA and MTCA.

The purpose of this section is to provide for the adoption of integration principles, processes and documents for Growth Management, SEPA and the Model Toxics Control Act. The city adopts by reference the following sections of the Washington Administrative Code, as now enacted or as hereafter amended:

197-11-210 SEPA/GMA Integration

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

197-11-250 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 Actions

197-11-265 Early Scoping for MTCA Remedial Actions

197-11-268 MTCA Interim Actions

(Ord. 870 § 2B, 1996)

III. Categorical Exemptions and Threshold Determinations

17.84.065 Adoption by reference.

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 or proposals not requiring an EIS. The city adopts the following sections of 197-11 WAC by reference, as supplemented in this article:

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.

197-11-350 MDNS.

197-11-355 Optional DNS.

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

197-11-390 Effect of threshold determination.

(Ord. 977 § 2, 1999: Ord. 476 § 2 (part), 1984)

17.84.070 Flexible thresholds for categorical exemptions.

The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(d):

A. For single-family residential projects, up to thirty dwelling units;

B. For multifamily residential projects, up to sixty dwelling units;

C. For agricultural structures, up to forty thousand square feet;

D. For office, school, commercial, recreational, service or storage buildings, up to thirty thousand square feet;

E. For parking facilities, up to ninety parking spaces;

F. For landfills and excavations in WAC 197-11-800(1)(b)(v), up to one thousand cubic yards. (Ord. 1340 § 1, 2013: Ord. 937 § 7, 1998; Ord. 908 § 15, 1997: Ord. 476 § 2 (part), 1984)

17.84.075 Categorical exemptions without flexible thresholds.

The following proposed actions that do not have flexible thresholds are categorically exempt from threshold determination and EIS requirements, subject to the rules and limitations on categorical exemptions contained in Chapter 197-11-305 WAC.

A. Actions listed in WAC 197-11-800(2) through (24).

B. The following wireless communications facilities not in a designated environmentally sensitive area and which do not consist of a series of actions, some of which are not categorically exempt, or that together may have a probable significant adverse environmental impact:

1. Microcells to be attached to an existing structure that is not a residence or school and does not contain a residence or a school;

2. A facility that includes personal wireless service antennas, other than a microcell, and is to be attached to an existing structure (which may be an existing tower) that is not a residence or school and does not contain a residence or a school, and is located in a commercial, industrial, manufacturing, forest, or agricultural zone; and

3. A facility that involves construction of a personal wireless service tower less than sixty feet in height that is located in a commercial, industrial, manufacturing, forest, or agricultural zone. (Ord. 1340 § 2, 2013)

17.84.080 Use of exemptions.

A. For each department within the city that receives an application for a license or, in the case of governmental proposals, for the department initiating the proposal, the responsible official shall determine whether the license and/or the proposal is exempt. This determination 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 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 responsible official shall determine the lead agency, even if the license application that triggers the consideration is exempt.

C. Planned Actions. The city adopts by reference the following sections of Chapter 197-11 WAC relating to planned actions, as now existing or as hereafter amended, and as supplemented in this chapter: WAC 197-11-164, 197-11-168 and 197-11-172.

1. A planned action does not require a threshold determination or the preparation of an environmental impact statement under SEPA, but is subject to environmental review and mitigation under SEPA.

2. A “planned action” means one or more types of project action that:

a. Are designated planned actions by an ordinance or resolution adopted by the city;

b. Have had the significant impacts adequately addressed in an environmental impact statement prepared in conjunction with:

i. A comprehensive plan or subarea plan adopted under Chapter 36.70A RCW, or

ii. A fully contained community, a master planned resort, a master planned development or a phased project;

c. Are subsequent or implementing projects for the proposals listed in subsection (C)(2)(b) of this section;

d. Are located within an urban growth area, as defined in RCW 36.70A.030;

e. Are not essential public facilities, as defined in RCW 36.70A.200; and

f. Are consistent with the city’s comprehensive plan adopted under Chapter 36.70A RCW.

3. Limitations on Planned Actions. The city shall limit planned actions to certain types of development or to specific geographical areas that are less extensive than the jurisdictional boundaries of the city, and may limit a planned action to a time period identified in the environmental impact statement or the adoption of this code.

D. 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. The responsible official may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved. (Ord. 977 § 3, 1999: Ord. 476 § 2 (part), 1984)

17.84.090 Environmental checklist.

A. A completed environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not exempted in this chapter; except, a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The checklist shall be in the form of WAC 197-11-960 with the following additions:

Paragraph 14(b) Describe the existing condition of the proposed access road, including width of easement, width of pavement or roadway, curbs, gutters, and/or sidewalks.

B. For private proposals, the city shall 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. 476 § 2 (part), 1984)

17.84.100 MDNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a determination of nonsignificance (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 make a written request for 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 five 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 areas 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 environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within fourteen 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 determination of nonsignificance 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 a 200-foot stormwater retention pond at Y location” are adequate.

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

F. A MDNS is issued under WAC 197-11-340(2), requiring a fourteen-day comment period and public notice.

G. Mitigation measures incorporated in the MDNS shall be deemed conditions of approval of the permit decision and must 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 C 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. 977 § 4, 1999; Ord. 476 § 2 (part), 1984)

17.84.105 Optional DNS process.

A. If the responsible official has a reasonable basis for determining that significant adverse environmental impacts are unlikely, the responsible official may elect to use the single integrated comment period set forth in this section. If this process is used, a second comment period will typically not be required when the DNS is issued.

B. If the optional process set forth in this section is used, the responsible official shall:

1. State on the first page of the notice of application that it expects to issue a DNS for the proposal, and that

a. The optional DNS process is being used;

b. This may be the only opportunity to comment on the environmental impacts of the proposal;

c. The proposal may include mitigation measures under applicable codes, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared; and

d. A copy of the subsequent threshold determination for the specific proposal may be obtained upon request (in addition, the city may choose to maintain a general mailing list for threshold determination distribution).

2. List in the notice of application the conditions being considered to mitigate environmental impacts, if a MDNS is expected;

3. Comply with the requirements for a notice of application and public notice in RCW 36.70B.110; and

4. Send the notice of application and environmental checklist to:

a. Agencies with jurisdiction, the Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and

b. Anyone requesting a copy of the environmental checklist for the specific proposal (in addition, the city may choose to maintain a general mailing list for checklist distribution).

C. If the responsible official indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application in accordance with MMC 17.84.053, WAC 197-11-940, and WAC 197-11-948.

D. The responsible official shall consider timely comments on the notice of application and either:

1. Issue a DNS or MDNS with no comment period using the procedures in subsection E below;

2. Issue a DNS or MDNS with a comment period using the procedures in subsection E below, if the responsible official determines a comment period is necessary;

3. Issue a DS; or

4. Require additional information or studies prior to making a threshold determination.

E. If a DNS or MDNS is issued under subsection D(1) or D(2) above, the responsible official shall send a copy of the DNS or MDNS to the Department of Ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated. (Ord. 977 § 6, 1999)

IV. Environmental Impact Statement (EIS)

17.84.110 Adoption by reference.

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

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping.

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

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

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

197-11-444 Elements of the environment.

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

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 476 § 2 (part), 1984)

17.84.120 Preparation of EIS-Additional considerations.

A. Preparation of each draft, final and supplemental EIS is the responsibility of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

B. An EIS shall be prepared by city staff, the applicant, or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city’s procedure for EIS preparation, including approval of the draft and final EIS 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 city ordinance or state law, even if it is being requested from another agency. (Ord. 476 § 2 (part), 1984)

17.84.125 Additional elements to be covered in an EIS.

Any one or all of the following additional elements may, at the option of the city, be required to be treated as 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. Social policy analysis; and/or

C. Cost-benefit analysis. (Ord. 476 § 2 (part), 1984)

V. Commenting

17.84.128 Adoption by reference.

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

197-11-500 Purpose of 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. 476 § 2 (part), 1984)

17.84.130 Public notice.

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

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

2. If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by one or more of the following methods as deemed appropriate by the responsible official:

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

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

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

d. Mailing notices to owners of real property located within three hundred feet of any portion of the boundary of the proposal.

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.

4. If the DS is made concurrent with the notice of application, the DS and scoping notice shall be combined with the notice of application issued under RCW 36.70B.110. Nothing in this subsection prevents the DS/scoping notice from being issued before the notice of application. If sufficient information is not available to make a threshold determination when the notice of application is issued, the DS may be issued later in the review process.

5. If an open record pre-decision hearing is required, the threshold determination shall be issued at least fifteen days before the open record pre-decision hearing.

B. Whenever the city issues a draft EIS under WAC 197-11-455(5) or a supplemental EIS under WAC 197-11-620, notice of the availability of those documents shall be given by indicating the availability of the EIS in any public notice required for a nonexempt license and at least one of the following;

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

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

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

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

5. Mailing notice to owners of real property located within three hundred feet of any portion of the boundary of the proposal.

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

D. The city may require an applicant to complete the public notice requirements for the proposal at the applicant’s expense. (Ord. 947 § 5, 1999: Ord. 476 § 2 (part), 1984)

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

A. The responsible official 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 draft EIS.

B. The 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 that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 476 § 2 (part), 1984)

VI. Using Existing Environmental Documents

17.84.150 Adoption by reference.

This article contains rules for using and supplementing existing environmental documents prepared under SEPA or NEPA for the city’s own environmental compliance. The city adopts the following sections by reference:

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. 476 § 2 (part), 1984)

VII. SEPA and Agency Decisions

17.84.155 Adoption by reference.

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

197-11-650 Purpose of this Part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

197-11-700 Definitions.

(Ord. 476 § 2 (part), 1984)

17.84.160 Substantive authority.

A. The policies and goals as 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 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 final EIS or final supplemental EIS prepared pursuant to this chapter; and

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

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

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

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

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

b. Assure for all people of the state safe, healthful, productive, and aesthetically and culturally pleasing surroundings;

c. Attain the widest range of beneficial uses of the environment without degradation, risk of health and 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 policies in the following city codes, ordinances, resolutions and plans, as now existing and as hereafter amended, as additional SEPA policies:

a. Mukilteo Municipal Code;

b. Mukilteo Comprehensive (Zoning) Plan;

c. Mukilteo Transportation Plan;

d. Mukilteo Sewer Plan;

e. Mukilteo Storm Drainage Plan; and

f. Mukilteo Park Plan.

(Ord. 977 § 7, 1999: Ord. 716 § 4, 1992; Ord. 476 § 2 (part), 1984)

17.84.165 Integration with permit and land use decision.

Under state law, the procedure for review of project permits shall be combined with the environmental review process, both procedural and substantive. The process under the State Environmental Policy Act (SEPA) and this chapter shall integrate the following procedures, insofar as possible, with any applicable process for decision-making on permit and land use applications:

A. Staff review of the application under city codes and regulations and the environmental review and determination thereon;

B. The staff report on the application, and the report or documentation concerning environmental review;

C. Hearings and other public processes, including required public notices, required by city code or regulation, and hearings and other public processes, including public notices, required or conducted under SEPA. This section shall include appeals, except as otherwise expressly provided by this code;

D. Such other review processes as the planning director shall determine. (Ord. 977 § 8, 1999)

17.84.170 Appeals.

A. Unless otherwise provided by this section:

1. Appeals under this chapter shall be of the governmental action together with its accompanying environmental determinations and shall be heard as described in MMC 17.13.070, Public hearings;

2. Appeals of environmental determinations made (or lacking) under this chapter shall be commenced within the time required to appeal the governmental action which is subject to environmental review.

B. The city shall not allow more than one city appeal proceeding on a procedural determination (the adequacy of a determination of significance/ nonsignificance or of a final environmental impact statement). The appeal proceeding on a determination of nonsignificance (DNS) may occur before the city’s final decision on a proposed action only if the appeal is heard at a proceeding where the decision body will render a final recommendation or decision on the proposed underlying governmental action. Such appeal shall also be allowed for a determination of significance/nonsignificance which may be issued by the city after supplemental review.

C. The city shall consolidate an appeal of procedural issues and of substantive determinations made under this chapter (such as a decision to require particular mitigation measures or to deny a proposal) with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing as outlined in MMC 17.13.070 to consider the city decision on a proposal and any environmental determinations made under this chapter, with the exception of the appeal, if any, of a determination of significance as provided in subsection (A)(2) of this section or an appeal to the local legislative authority under RCW 43.21C.060 or other applicable state statutes.

D. The city establishes the following administrative appeal procedures:

1. Any appeal of a project decision and any environmental determination, other than an appeal of a determination of significance, shall be considered together in a consolidated appeal hearing as outlined in MMC 17.13.070. Any agency or person may appeal the city’s procedural compliance with Chapter 197-11 WAC for issuance of the following determinations:

a. A Final Determination of Nonsignificance (DNS) or Mitigated Determination of Nonsignificance (MDNS) Made Prior to Project Permit Decision. An appeal of the DNS or MDNS made prior to the project permit decision must be submitted to the city within fourteen days of the date the DNS or MDNS becomes final. The appeal period shall be extended an additional seven days if state or local rules adopted pursuant to 43.21C RCW (SEPA) allow public comment on a DNS issued as part of the appealable decision. The appeal is heard as an open record hearing in accordance with MMC 17.13.070, and may be combined with an open record pre-decision hearing on the underlying government action.

b. A Final Determination of Nonsignificance (DNS) or Mitigated Determination of Nonsignificance (MDNS) Made with Project Permit Decision. An appeal of the DNS or MDNS must be submitted to the city within fourteen days of the date the DNS or MDNS becomes final. The appeal period shall be extended an extra seven days if state or local rules adopted pursuant to 43.21C RCW (SEPA) allow public comment on a DNS issued as part of the appealable decision. The appeal is heard as an open record hearing in accordance with MMC 17.13.070, together with any appeal on the underlying government action; provided that, if an open record pre-decision hearing has already been held, the appeal shall be heard in a closed record appeal.

c. A Final Determination of Significance (DS). An appeal of the DS must be submitted to the city within fourteen days of the date the DS becomes final. The appeal is heard as an open record appeal hearing by the city council. A subsequent open record hearing may be held on the underlying action and accompanying SEPA documents (including an EIS, if one is prepared), and any SEPA substantive determinations.

E. For any closed record appeal under this subsection, the city shall provide for a record that shall consist of the following:

1. Finding and conclusions;

2. Testimony under oath; and

3. A taped or written transcript.

F. The city may require the applicant to provide an electronic transcript.

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

H. No permit shall be issued which would allow construction, demolition, grading, or other direct modification of the physical environment until expiration of the period for filing a notice of appeal, and until any appeal shall have been finalized at the city council level.

I. The city shall give official notice whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. The following permits or approvals require official notice: All actions of the city council, a city official, board or commission for which no further administrative appeal is provided.

J. Except for permits and variances issued pursuant to Chapter 16.28 of this code, when any proposal or action not requiring a decision of the city council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the city council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within ten days of the issuance of the decision being appealed. Review by the city council shall be on a de novo basis. (Ord. 977 § 9, 1999: Ord. 870 § 2D, 1996: Ord. 476 § 2 (part), 1984)

17.84.173 Notice/statute of limitations.

A. The city, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action at or before the time of the action so long as the notice indicates that the time for appeal of SEPA issues will run concurrently with that of any substantive action.

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990 with amendments to conform to subsection A of this section. The notice shall be published by the city clerk or county auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 476 § 2 (part), 1984)

VIII. Definitions

17.84.175 Adoption by reference.

This article contains uniform usage and definitions of terms under SEPA. The city adopts the following sections of Chapter 197-11 WAC by reference, as supplemented by WAC 173-806-040:

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 exemptions.

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 Decisionmaker.

197-11-732 Department.

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

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

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-748 Environmentally sensitive area.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 MDNS.

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. 977 § 10, 1999: Ord. 476 § 2 (part), 1984)

IX. Categorical Exemptions

17.84.180 Adoption by reference.

The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, in Section 17.84.070, 17.84.080 and 17.84.190:

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 476 § 2 (part), 1984)

X. Agency Compliance

17.84.185 Adoption by reference.

This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections of Chapter 197-11 WAC by reference, as supplemented by Section 17.84.050 through 17.84.053 and this article:

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-914 SEPA fees and costs.

197-11-916 Application to ongoing actions.

197-11-920 Agencies with environmental expertise.

197-11-922 Lead agency rules.

197-11-924 Determining the lead agency.

197-11-926 Lead agency for governmental proposals.

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

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

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

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more 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. 977 § 11, 1999: Ord. 476 § 2 (part), 1984)

17.84.190 Critical areas.

Proposals that will be located within a critical area are to be treated no differently than other proposals under SEPA.

A threshold determination shall be made for all such actions, and an EIS shall not be automatically required for a proposal merely because it is proposed for location in a critical area. (Ord. 1411 § 5, 2018: Ord. 870 § 2C, 1996: Ord. 476 § 2 (part), 1984)

17.84.200 Fees.

The city shall require fees in such amounts as are established by the city council pursuant to such periodic resolution as council, from time to time, updates and approves for its activities in accordance with the provisions of this chapter:

A. Threshold Determination. For every environmental checklist the city will review when it is lead agency, the city shall collect an established fee 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 an established fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant 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. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals. The city may require the applicant to post bond or otherwise ensure payment of such costs.

3. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subdivisions 1 and 2 of this subsection which remain after incurred costs are paid.

C. The city may collect 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 an established fee for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by Chapter 42.17 RCW. (Ord. 476 § 2 (part), 1984)

17.84.205 Effective date.

The effective date of this chapter is October 1, 1984. (Ord. 476 § 2 (part), 1984)

XI. Forms

17.84.230 Adoption by reference.

The city adopts the following forms and sections by reference:

197-11-960 Environmental checklist.

197-11-965 Adopting 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. 476 § 2 (part), 1984)