Chapter 13.04 STATE ENVIRONMENTAL POLICY ACT

(a) 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:

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

(2) “SEPA Rules” means Chapter 197-11 WAC, adopted by the Department of Ecology.

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

(4) “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures).

(b) Designation of Responsible Official.

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

(2) For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA Rules that were adopted by reference in WAC 173-806-020.

(3) 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.

(c) 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.

(d) 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:

(1) Threshold Determinations.

(A) When the responsible official requires further information from the applicant or consultation with other agencies with jurisdiction:

(i) The city should request such further information within fifteen days of receiving an adequate application and completed environmental checklist;

(ii) The city shall wait no longer than thirty days for a consulted agency to respond;

(iii) The responsible official should complete the threshold determination within fifteen days of receiving the requested information from the applicant or the consulted agency.

(B) The city shall complete threshold determinations on actions where the applicant recommends in writing that an EIS be prepared, because of the probable significant adverse environmental impact(s) described in the application, within fifteen days of receiving an adequate application and completed checklist.

(e) Additional Timing Considerations.

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

(2) 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. 1206 § 1, 2005: Ord. 705 § 2, 1984).

13.04.030 Categorical exemptions and threshold determinations.

The city adopts the following sections 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.

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

197-11-390 Effect of threshold determination.

(a) Flexible Thresholds for Categorical Exemptions. The city of Othello establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b), based on local conditions:

(1) For residential dwelling units in WAC 197-11-800(1)(b)(i) (Note: Range four to twenty units): Up to five dwelling units.

(2) For agricultural structures in WAC 197-11-800(1)(b)(ii) (Note: Range ten thousand to thirty thousand square feet): Up to thirty thousand square feet.

(3) For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii) (Note: Range four thousand to twelve thousand square feet and twenty to forty parking spaces): Up to six thousand square feet and up to forty parking spaces.

(4) For parking lots in WAC 197-11-800(1)(b)(iv) (Note: Range twenty to forty parking spaces): Up to twenty parking spaces.

(5) For landfills in WAC 197-11-800(1): Up to one hundred cubic yards.

(6) For excavations in WAC 197-11-800(1): Up to fifty cubic yards.

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).

(b) Use of Exemptions.

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

(2) In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental 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.

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

(A) The city shall not give authorization for:

(i) Any nonexempt action;

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

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

(B) 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.

(1) 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.

(2) For private proposals, the city will require the applicant to complete the environmental checklist, providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.

(3) The SEPA checklist for private proposals shall be submitted with a nonrefundable two hundred dollar administrative fee. If use of a city land use sign is required for posting the site, a refundable one hundred fifty dollar deposit shall be paid for each sign used at the time of checkout. Said deposit shall be forfeited if the sign it secures is not returned in the same condition as when checked out, normal wear and tear excepted, within fourteen days of the end of the appeal period for the land use decision advertised on the sign. Prior to issuance of a final decision on a SEPA checklist or application, the proponent shall be responsible to reimburse the city, as a user fee, for all reasonable costs incurred by the city in employing by contract engineering, design, and legal professionals to review such SEPA application.

(d) Mitigated DNS.

(1) 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.

(2) An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

(A) Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

(B) Precede the city’s actual threshold determination for the proposal.

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

(A) Be written;

(B) State whether the city currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the city to consider a DS; and

(C) State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

(4) As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

(5) When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen days of receiving the changed or clarified proposal:

(A) If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a DNS under WAC 197-11-340(2).

(B) If the city indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

(C) The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machines to X decibel” or “construct two-hundred-foot stormwater retention pond at Y location” are adequate.

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

(6) A mitigated DNS is issued under WAC 197-11-340(2), requiring a fifteen-day comment period and public notice.

(7) Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city.

(8) If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).

The city’s written response under subsection (2) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarification 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. 1209 § 2, 2005: Ord. 1111 § 1, 2001; Ord. 705 § 3, 1984).

13.04.040 Environmental impact statement (EIS).

The city adopts the following sections by reference, as supplemented by this part.

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping (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.

197-11-449 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(a) Preparation of EIS—Additional Considerations.

(1) Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the planning 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 WAC Chapter 197-11.

(2) 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. 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.

(3) 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.

(b) Additional Elements to be Covered in an EIS. The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determination or perform any other function or purpose under this chapter:

(1) Economic impact analysis;

(2) Social impact analysis;

(3) Cost-benefit analysis. (Ord. 705 § 4, 1984).

13.04.050 Commenting.

(a) Adoption by Reference. The city adopts the following sections by reference, as supplemented in this part:

WAC 197-11-500 Purpose of this part.

502 Inviting comment.

504 Availability and cost of environmental documents.

508 SEPA register.

535 Public hearings and meetings.

545 Effect of no comment.

550 Specificity of comments.

560 FEIS response to comments.

570 Consulted agency costs to assist lead agency.

(b) Public Notice.

(1) Whenever the city of Othello issues a DNS under WAC 197-11-340(2) or aDS under WAC 197-11-360(3). the city shall give public notice as follows:

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

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

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

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

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

(iv) Notifying the news media;

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

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

(C) Whenever the city issues a DS under WAC 197-11-360(3), the city shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

(2) Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

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

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

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

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

(E) Notifying the news media;

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

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

(3) 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.

(4) The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense.

(1) The planning commission shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping and reviewing a DEIS.

(2) This department shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 705 § 5, 1984).

13.04.060 Using existing environmental documents.

The city adopts the following sections by reference:

WAC 197-11-600 When to use existing environmental documents.

610 Use of NEPA documents.

620 Supplemental environmental impact statement procedures.

625 Addenda—Procedures.

630 Adoption—Procedures.

635 Incorporation by references/procedures.

640 Combining documents.

(Ord. 705 § 6, 1984)

13.04.070 SEPA and agency decisions.

The city adopts the following sections by reference:

WAC 197-11-650 Purpose of this section.

655 Implementation.

660 Substantive authority and mitigation.

680 Appeals.

(a) Substantive Authority.

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

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

(A) Such conditions are in writing; and

(B) The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

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

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

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

(A) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SETS prepared pursuant to this chapter; and

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

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

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

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

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

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

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

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

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

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

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

(D) The city establishes the following additional policies.

(5) Except for permits and variances issued when any proposal or action not requiring a decision of the city planning commission 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 decision being appealed. Review by the city planning commission shall be on a de novo basis.

(b) Appeals. The city of Othello establishes the following administrative appeal procedures under RCW 43.21c.075 and WAC 197-11-680:

(1) Any agency or person may appeal the city’s procedural compliance with WAC Chapter 197-11 for issuance of the following:

(A) Appeal of the DNS must be made to planning. commission within thirty days of the date the DNS is final (see WAC 197-11-390 (2)(a)).

(2) For any appeal under this subsection, the city shall provide for a record that shall consist of the following:

(A) Findings and conclusions;

(B) Testimony under oath; and

(3) The city may require the appellant to provide an electronic transcript.

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

(5) The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 705 § 7, 1984).

13.04.080 Definitions.

The city adopts the following sections by reference, as supplemented by WAC 173-806-040:

WAC 197-11-700 Definitions.

702 Act.

704 Action.

706 Addendum.

708 Adoption.

710 Affected tribe.

712 Affecting.

714 Agency.

716 Applicant.

720 Built environment.

722 Categorical exemption.

724 Consulted agency.

726 Cost-benefit analysis.

728 City.

730 Decision maker.

732 Department.

734 Determination of nonsignificance (DNS).

736 Determination of significance (DS).

738 EIS.

740 Environment.

742 Environmental checklist.

744 Environmental document.

748 Environmentally sensitive area.

750 Expanded scoping.

752 Impacts.

754 Incorporation by reference.

756 Lands covered by water.

758 Lead agency.

760 License.

762 Local agency.

764 Incorporation by reference.

766 Mitigated DNS.

768 Mitigation.

77 0Natural environment.

772 NEPA.

774 Nonproject.

776 Phased review.

778 Preparation.

780 Private project.

782 Probable.

784 Proposal.

786 Responsible alternative.

788 Responsible official.

790 SEPA.

792 Scope.

793 Scoping.

794 Significant.

796 State agency.

797 Threshold determination.

(Ord. 705 § 8, 1984).

13.04.090 Categorical exemptions.

The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including WAC 173-806-070 (flexible thresholds) WAC 173-806-080 (use of exemptions), and WAC 173-806-190 (environmentally sensitive areas):

WAC 197-11-800 Categorical exemptions.

880 Emergencies.

890 Petitioning DOE to change exemptions.

(Ord. 705 § 9, 1984).

13.04.100 Agency compliance.

The city adopts the following sections by reference, as supplemented by WAC 173-806-043 and this part:

WAC 197-11-900 Purpose of this part.

902 Agency SEPA policies.

916 Application to ongoing actions.

920 Agencies with environmental expertise.

922 Lead agency rules.

924 Determining the lead agency.

926 Lead agency for governmental proposals.

928 Lead agency for public and private proposals.

930 Lead agency for private projects with one agency with jurisdiction.

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

934 Lead agency for private projects requiring licenses from a local agency, not a city, and one or more state agencies.

936 Lead agency for private projects requiring licenses from more than one state agency.

WAC 197-11-938 Lead agencies for specific proposals.

940 Transfer of lead agency status to a state agency.

942 Agreements on lead agency status.

944 Agreements on division of lead agency duties.

946 DOE regulation of lead agency disputes.

948 Assumptions of lead agency status.

A. Environmentally Sensitive Areas. The city of Othello shall designate environmentally sensitive areas under the standards of WAC 197-11-908 and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the city of Othello and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.

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

2. Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped.

B. Severability. If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected. (Ord. 705 § 10, 1984).

13.04.110 Forms.

The city adopts the following forms and sections by reference:

WAC 197-11-960 Environmental checklist.

965 Adoption notice.

970 Determination of nonsignificance (DNS).

980 Determination of significance and scoping notice (DS).

985 Notice of assumption of lead agency status.

990 Notice of action.

(Ord. 705 § 11, 1984).