Chapter 16.08
ENVIRONMENTAL CODE
Sections:
16.08.020 Adoption by reference.
16.08.030 Additional definitions.
16.08.040 Additional timing considerations.
16.08.060 Lead agency determination and responsibilities.
16.08.070 Environmental checklist.
16.08.090 Preparation of EIS—Additional considerations.
16.08.110 Designation of official to perform consulted agency responsibilities for the city.
16.08.120 Designation of responsible official.
16.08.130 Substantive authority.
16.08.140 Responsibility of agencies—SEPA public information.
16.08.160 Notice—Statute of limitations.
16.08.010 Authority.
The city adopts this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA Rules, WAC 197-11-904. (Ord. 1288 § 1, 1984).
16.08.020 Adoption by reference.
The city adopts the following sections or subsections of Chapter 197-11 WAC, as now or as hereafter amended by reference:
WAC 197-11-040 Definitions.
050 Lead agency.
055 Timing of the SEPA process.
060 Content of environmental review.
070 Limitations on action during SEPA process.
080 Incomplete or unavailable information.
090 Supporting documents.
100 Information required of applicants.
158 GMA project review—Reliance on existing plans, laws, and regulations.
164 Planned actions—Definitions and criteria.
168 Ordinances or resolutions designating planned actions—Procedures for adoption.
172 Planned actions—Project review.
210 SEPA/GMA integration.
220 SEPA/GMA definitions.
228 Overall SEPA/GMA integration procedures.
230 Timing of an integrated GMA/SEPA process.
232 SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping.
235 Documents.
238 Monitoring.
250 SEPA/Model Toxics Control Act integration.
253 SEPA lead agency for MTCA.
256 Preliminary evaluation.
259 Determination of nonsignificance for MTCA remedial action.
262 Determination of significance and EIS for MTCA remedial actions.
265 Early scoping for MTCA remedial actions.
268 MTCA interim actions.
300 Purpose of this part.
305 Categorical exemptions.
310 Threshold determination required.
315 Environmental checklist.
320 Threshold determination process.
335 Additional information.
340 Determination of nonsignificance (DNS).
350 Mitigated DNS.
355 Optional DNS process.
360 Determination of significance (DS)/initiation of scoping.
390 Effect of threshold determination.
400 Purpose of EIS.
402 General requirements.
405 EIS types.
406 EIS timing.
408 Scoping.
410 Expanded scoping.
420 EIS preparation.
425 Style and size.
430 Format.
435 Cover letter or memo.
440 EIS contents.
442 Contents of EIS on nonproject proposals.
443 EIS contents when prior nonproject EIS.
444 Elements of the environment.
448 Relationship of EIS to other considerations.
450 Cost-benefit analysis.
455 Issuance of DEIS.
460 Issuance of FEIS.
500 Purpose of this part.
502 Inviting comment.
504 Availability and cost of environmental documents.
508 SEPA register.
510 Public notice.
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.
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 reference—Procedures.
640 Combining documents.
650 Purpose of this part.
655 Implementation.
660 Substantive authority and mitigation.
680 Appeals.
700 Definitions.
702 Act.
704 Action.
706 Addendum.
708 Adoption.
710 Affected tribe.
712 Affecting.
714 Agency.
716 Applicant.
718 Built environment.
720 Categorical exemption.
721 Closed record appeal.
722 Consolidated appeal.
724 Consulted agency.
726 Cost-benefit analysis.
728 County/city.
730 Decisionmaker.
732 Department.
734 Determination of nonsignificance (DNS).
736 Determination of significance (DS).
738 EIS.
740 Environment.
742 Environmental checklist.
744 Environmental document.
746 Environmental review.
750 Expanded scoping.
752 Impacts.
754 Incorporation by reference.
756 Lands covered by water.
758 Lead agency.
760 License.
762 Local agency.
764 Major action.
766 Mitigated DNS.
768 Mitigation.
770 Natural environment.
772 NEPA.
774 Nonproject.
775 Open record hearing.
776 Phased review.
778 Preparation.
780 Private project.
782 Probable.
784 Proposal.
786 Reasonable alternative.
788 Responsible official.
790 SEPA.
792 Scope.
793 Scoping.
794 Significant.
796 State agency.
797 Threshold determination.
799 Underlying governmental action.
800 Categorical exemptions.
880 Emergencies.
890 Petitioning DOE to change exemptions.
900 Purpose of this part.
902 Agency SEPA policies.
904 Agency SEPA procedures.
906 Content and consistency of agency procedures.
908 Critical areas.
910 Designation of responsible official.
912 Procedures for consulted agencies.
914 SEPA costs and fees.
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 county/city.
934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
936 Lead agency for private projects requiring licenses from more than one state agency.
938 Lead agencies for specific purposes.
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 resolution of lead agency disputes.
948 Assumption of lead agency status.
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. 2010 § 1, 1998: Ord. 1288 § 2, 1984).
16.08.030 Additional definitions.
In addition to those definitions contained within WAC 197-11-700 through WAC 197-11-700, 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 WAC Chapter 197-Il 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. 1288 § 3, 1984).
16.08.040 Additional timing considerations.
A. 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.
B. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. The point at which environmental review may be initiated for specific permits or other licenses requiring detailed project plans and specifications is at the time of the application, and not thereafter. (Ord. 1288 § 4, 1984).
16.08.050 Use of exemptions.
A. Each department within the city that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal, shall determine whether the license and/or the proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this ordinance apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal.
B. In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and non-exempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.
C. If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:
1. The city shall not give authorization for:
a. Any nonexempt action;
b. Any action that would have an adverse environmental impact; or
c. Any action that would limit the choice of alternatives.
2. A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were no 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. 1288 § 5, 1984).
16.08.060 Lead agency determination and responsibilities.
A. The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and WAC 197-11-922 through WAC 197-11-940; unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.
B. When the city is the lead agency for a proposal, the department receiving the application shall determine the responsible official who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.
C. When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No city department shall prepare or require preparations 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 WAC 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within fifteen 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 fifteen-day time period. Any such petition on behalf of the city may be initiated by city superintendent.
E. Departments of the city are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and WAC 197-11-944; provided, that the responsible official and any department that will incur responsibilities as the result of such agreement must approve the agreement.
F. Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is: which agencies require nonexempt licenses). (Ord. 1288 § 6, 1984).
16.08.070 Environmental checklist.
A. A completed environmental checklist (or a copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate or other approval not specifically exempted in this chapter; except, a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for determining the responsible official and for making the threshold determination.
B. For private proposals, the city will require the applicant to complete the environmental checklist, providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal. (Ord. 1288 § 7, 1984).
16.08.080 Mitigated DNS.
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 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 ten working days. The response shall:
1. Be written;
2. State whether the city currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that are leading the city to consider a PS; 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 fifteen days of receiving the changed or clarified proposal:
1. If the city indicates 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 storm water runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct two hundred-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. A mitigated DNS is issued under WAC 197-11-340(2), requiring a fifteen-day comment period and public notice.
G. Mitigation measures which justify issuance of a mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city.
H. If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the city should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).
I. The city’s written response under subsection B of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city to consider the clarifications or changes in its threshold determination. (Ord. 1288 § 8, 1984).
16.08.090 Preparation of EIS—Additional considerations.
A. Preparation of draft and final EIS’s and SEIS’s is the responsibility of the city superintendent. Before the city issues an EIS, the city superintendent and the city attorney shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.
B. The draft and final EIS or SEIS shall be prepared by the applicant or by a consultant selected by the city council or by their approval. If the city superintendent requires an EIS for a proposal and determines that someone other than the city will prepare the EIS, the city superintendent shall notify the applicant immediately upon completion of the threshold determination. The city superintendent 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 that 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. 1288 § 9, 1984).
16.08.100 Public notice.
A. Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the city shall give public notice as follows:
1. If public notice is required for a nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due.
2. If no public notice is required for the permit or approval, the city shall give notice of the DNS, or DS by publishing notice in newspaper of general circulation in the county, city or general area where the proposal is located.
3. Whenever the city issues a DS under WAC 197-11-360(3) the city shall state the scoping procedure in the DS as required in WAC 197-11-408.
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:
1. Indicating the availability of the EIS in any public notice required for a nonexempt license; and
2. Publishing notice in a newspaper of general circulation in the county, city or general area where the proposal is located.
C. Whenever possible, the city shall integrate the public notice required under this section with existing notice procedures for the city’s nonexempt permit(s) or approval(s) required for the proposal.
D. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 1288 § 10, 1984).
16.08.110 Designation of official to perform consulted agency responsibilities for the city.
A. The city superintendent shall be responsible for the preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, or reviewing a draft EIS.
B. The city superintendent 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. 1288 § 11, 1984).
16.08.120 Designation of responsible official.
A. For those proposals for which the city is the lead agency, the responsible official shall be the city superintendent.
B. For all proposals for which the city is the lead agency, the city superintendent 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 were adopted by reference in WAC 173-806-020. (Ord. 1288 § 12, 1984).
16.08.130 Substantive authority.
A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city.
B. The city may attach conditions to a permit or approval for a proposal so long as:
1. Such conditions are necessary to mitigate specific probable significant 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 Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings;
c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety or other undesirable and unintended consequences;
d. Preserve important historic, cultural and natural aspects of our national heritage;
e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;
f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
2. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
E. Appeals required by RCW 43.21C.060 are eliminated. (Ord. 1288 § 13, 1984).
16.08.140 Responsibility of agencies—SEPA public information.
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. 1288 § 14, 1984).
16.08.150 Fees.
Fees shall be paid in accordance with the provisions of Chapter 20.10. (Ord. 2615 § 2, 2008).
16.08.160 Notice—Statute of limitations.
A. The city, applicant for or proponent of any action may publish a notice of action pursuant to RCW 43.21C.080 for any action.
B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk or county auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1288 § 16, 1984).
16.08.900 Severability.
If any section, sentence, clause or phrase of this chapter should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this chapter. (Ord. 2615 § 3, 2008).