Chapter 16.05
STATE ENVIRONMENTAL POLICY ACT
Sections:
Article I. Authority
16.05.010 State Environmental Policy Act – Authority.
Article II. General Requirements
16.05.020 Purpose of this part and adoption by reference.
16.05.030 Additional definitions.
16.05.040 Designation of responsible official.
16.05.050 Lead agency determination and responsibilities.
16.05.053 Transfer of lead agency status to a state agency.
16.05.058 Additional timing considerations.
Article III. Categorical Exemptions and Threshold Determinations
16.05.065 Purpose of this part and adoption by reference.
16.05.070 Categorical exemptions.
16.05.080 Use of exemptions.
16.05.090 Environmental checklist.
16.05.100 Mitigated DNS – Early notice.
Article IV. Environmental Impact Statements (EIS)
16.05.110 Purpose of this part and adoption by reference.
16.05.120 Preparation of EIS – Additional considerations.
16.05.125 Additional elements to be covered in an EIS.
Article V. Commenting
16.05.128 Purpose of this part and adoption by reference.
16.05.130 Public notice.
16.05.140 Designation of official to perform consulted agency responsibilities for the town.
Article VI. Using Existing Environmental Documents
16.05.150 Purpose of this part and adoption by reference.
Article VII. SEPA and Agency Decisions
16.05.155 Purpose of this section and adoption by reference.
16.05.160 Substantive authority.
16.05.170 Appeals.
16.05.173 Notice and statute of limitations.
Article VIII. Definitions
16.05.175 Purpose of this part and adoption by reference.
Article IX. Categorical Exemptions
16.05.180 Purpose of this part and adoption by reference.
Article X. Agency Compliance
16.05.185 Purpose of this part and adoption by reference.
16.05.190 Critical areas.
16.05.200 Fees.
16.05.205 Effective date.
16.05.220 Severability.
Article XI. Forms
16.05.230 Adoption by reference.
Article I. Authority
16.05.010 State Environmental Policy Act – Authority.
(1) The town of Skykomish, hereinafter referred to as “town,” 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.
(2) This chapter contains this town’s SEPA procedures and policies.
(3) The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. (Ord. 280 § 21.01.010, 1999)
Article II. General Requirements
16.05.020 Purpose of this part and adoption by reference.
This part contains the basic requirements that apply to the SEPA process. The town adopts the following sections and future amendments of Chapter 197-11 WAC by reference, as supplemented in this part:
WAC
197-11-040 Definitions.
197-11-050 Lead agency.
197-11-060 Content of environmental review.
197-11-070 Limitations on actions during SEPA process.
197-11-080 Incomplete or unavailable information.
197-11-090 Supporting documents.
197-11-100 Information required of applicants.
197-11-158 GMA project review – Reliance on existing plans and regulations.
197-11-210 SEPA/GMA integration.
197-11-220 SEPA/GMA definitions.
197-11-228 Overall SEPA/GMA integration procedures.
197-11-230 Timing of an integrated GMA/SEPA process.
197-11-232 SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping.
197-11-235 Documents.
197-11-238 Monitoring. (Optional.)
197-11-250 SEPA Model Toxics Control Act integration.
197-11-253 SEPA lead agency for MTCA actions.
197-11-256 Preliminary evaluation.
197-11-259 Determination of nonsignificance for MTCA remedial actions.
197-11-262 Determination of significance and EIS for MTCA remedial actions.
197-11-265 Early scoping for MTCA remedial actions.
197-11-268 MTCA interim actions.
(Ord. 280 § 21.02.020, 1999)
16.05.030 Additional definitions.
In addition to those definitions in WAC 197-11-220 and 197-11-700 through 197-11-799, the following terms have the meanings described unless the context indicates otherwise:
(1) “Department” means any division, subdivision, or organizational unit of the town established by ordinance rule, or order.
(2) “DNS” means determination of nonsignificance.
(3) “DS” means determination of significance.
(4) “Early notice” means the town’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).
(5) “EIS” means environmental impact statement.
(6) “Ordinance” means the ordinance, resolution, or other procedure used by the town to adopt regulatory requirements.
(7) “SEPA rules” means Chapter 197-11 WAC as now or hereafter adopted by the Department of Ecology.
(8) “Town” means the town of Skykomish; references in the WAC to city shall be interpreted to apply to the town of Skykomish. The town, a department of the town, or a designated consultant of the town shall perform activities required of the town by this chapter, under the direction, and with the approval, of the town’s responsible official.
(9) “WAC” means the Washington Administrative Code. (Ord. 280 § 21.02.030, 1999)
16.05.040 Designation of responsible official.
(1) Responsible Official. For those proposals for which the town is the lead agency, the responsible official shall be the mayor.
(2) Functions. For all proposals for which the town is the lead agency, the responsible official shall make the threshold determinations, determine the scope and supervise the preparation of any required environmental impact statement (EIS), and perform any other functions assigned the “lead agency” or “responsible official” or by those sections of the SEPA rules that were adopted by reference in this chapter.
(3) Retain Documents. The town shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW, at the office of the clerk-treasurer in the Town Hall. (Ord. 280 § 21.02.040, 1999)
16.05.050 Lead agency determination and responsibilities.
(1) Nonexempt Action. The department within the town receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050, 197-11-253, and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the department or responsible official is aware that another agency is in the process of determining the lead agency.
(2) Town as Lead Agency. If the town is the lead agency, the department receiving or initiating a proposal will forward the application to the responsible official who will supervise compliance with the threshold determination requirements and, if an EIS is necessary, supervise its preparation.
(3) Town Not Lead Agency. If the town is not the lead agency, all departments of the town shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No town department shall prepare or require a DNS or EIS in addition to that prepared by the lead agency unless required by WAC 197-11-600. In some cases, the town may conduct supplemental environmental review under WAC 197-11-600.
(4) Objection to Lead Agency Determination. If the town receives a lead agency determination that appears inconsistent with the criteria of WAC 197-11-253 or 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the town must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the town may be initiated by the responsible official.
(5) Agreements. Departments of the town are 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 the responsible official and any department that will incur responsibilities as the result of such agreement approve the agreement.
(6) Private Projects. 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?).
(7) Model Toxics Control Act Remedial Action (MTCA). When the town is lead agency for a MTCA remedial action, the Department of Ecology shall be provided an opportunity under WAC 197-11-253(5) to review the environmental documents prior to public notice being provided. If the SEPA and MTCA documents are issued together with one public comment period under WAC 197-11-253(6), the town shall decide jointly with Ecology who receives the comment letters and how copies of the comment letters will be distributed to the other agency. (Ord. 280 § 21.02.050, 1999)
16.05.053 Transfer of lead agency status to a state agency.
(1) Notice. For any proposal for a private project where the town would be the lead agency and for which one or more state agencies have jurisdiction, the town’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 town shall be an agency with jurisdiction. To transfer lead agency duties, the town’s responsible official must transmit a notice of the transfer, together with any relevant information on the proposal, to the appropriate state agency with jurisdiction. The responsible official shall also give notice of the transfer to the private applicant and all other agencies with jurisdiction over the proposal. (Ord. 280 § 21.02.053, 1999)
16.05.058 Additional timing considerations.
For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the town staff’s recommendations to any appropriate advisory and final bodies such as planning commission and town council. (Ord. 280 § 21.02.058, 1999)
Article III. Categorical Exemptions and Threshold Determinations
16.05.065 Purpose of this part and 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 of proposals not requiring an EIS. The town adopts the following sections and future amendments of the Washington Administrative Code by reference, as supplemented in this part:
WAC
197-11-300 Purpose of this part.
197-11-305 Categorical exemptions.
197-11-310 Threshold determination required.
197-11-315 Environmental checklist.
197-11-330 Threshold determination process.
197-11-335 Additional information.
197-11-340 Determination of nonsignificance (DNS).
197-11-350 Mitigated DNS.
197-11-355 Optional DNS process.
197-11-360 Determination of significance (DS)/initiation of scoping.
197-11-390 Effect of threshold determination.
(Ord. 280 § 21.03.065, 1999)
16.05.070 Categorical exemptions.
(1) Minor New Construction – Flexible Thresholds. The town establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b) based on local conditions:
(a) The construction or location of any residential structures of four dwelling units or less.
(b) The construction of an office, school, commercial, recreational, service, or storage building with 4,000 square feet of gross floor area, or less, and with associated parking facilities designed for 20 automobiles or less.
(c) The construction of a parking lot designed for 20 automobiles or less.
(d) Any landfill or excavation of 100 cubic yards or less throughout the total lifetime of the fill or excavation.
(2) Other Minor New Construction. The following types of construction shall be exempt and shall apply to all licenses required to undertake the construction in question, except where a rezone or any license governing admissions to the air or discharges to the water is required.
(a) The construction or designation of bus stops, loading zones, shelters, access facilities and pull out lanes for transit and school vehicles;
(b) The construction and/or installation of commercial on-premises signs, and public signs and signals;
(c) The construction an/or installation of minor road and street improvements such as pavement marking, railroad protective devices (not including grade-separated crossings), grooving, glare screen, safety barriers, energy attenuators, transportation corridor landscaping (including application of Washington State Department of Agriculture approved herbicides by licensed personnel for right-of-way weed control as long as this is not within watershed controlled for the purpose of drinking water quality in accordance with WAC 248-54-660), temporary traffic controls and detours, correction of substandard curves and intersection within existing right-of-way, widening of a highway by less than a single lane width where capacity is not significantly increased and no new right-of-way is required, adding auxiliary lanes for localized purposes (weaving, climbing, speed change, etc.) where capacity is not significantly increased and no new right-of-way is required, channelization and elimination of sight restrictions at intersections, street lighting, guard rails and barricade installation, installation of catch basins and culverts, and reconstruction of existing roadbed (existing curb-to-curb in urban locations), including adding or widening of shoulders, addition of bicycle lanes, paths and facilities, and pedestrian walks and paths, but not including additional automobile lanes;
(d) Grading, excavating, filling, septic tank installations, and landscaping necessary for any building or facility exempted by subsections (1) and (2) of this section, as well as fencing and the construction of small structures and minor facilities accessory thereto;
(e) Additions or modifications of any building or facility exempted by subsections (1) and (2) of this section, when such addition, modification or replacement will not change the character of the building or facility in a way that would remove it from an exempt class;
(f) The demolition of any structure or facility, the construction of which would be exempted by subsections (1) and (2) of this section, except for structures or facilities with recognized historical significance;
(g) The installation of impervious underground tanks having a capacity of 10,000 gallons or less;
(h) The vacation of streets or roads;
(i) The installation of hydrological measuring devices, regardless of whether or not on lands covered by water;
(j) The installation of any property boundary or survey marker, other than fences, regardless of whether or not on lands covered by water.
(3) Repair, Remodeling and Maintenance Activities. The following activities shall be categorically exempt: the repair, remodeling, maintenance, or minor alteration of existing private or public structures, facilities or equipment, including utilities, involving no material expansions or changes in use beyond that previously existing; except that, where undertaken wholly or in part on lands covered by water, only minor repair or replacement of the structures may be exempt (examples include repair or replacement of pilings, ramps, floats, or mooring buoys, or minor repair, alteration, or maintenance of docks). The following maintenance activities shall not be considered exempt under this subsection:
(a) Dredging;
(b) Reconstruction/maintenance of groins and similar shoreline protection structures; or
(c) Replacement of utility cables that must be buried under the surface of the bedlands. Repair/rebuilding of major dams, dikes, and reservoirs shall also not be considered exempt under this subsection.
(4) Water Rights. The following appropriations of water shall be exempt, the exemption covering not only the permit to appropriate water, but also any hydraulics permit, shoreline permit or building permit required for a normal diversion or intake structure, well and pumphouse reasonably necessary to accomplish the exempted appropriation, and including any activities relating to construction of a distribution system solely for any exempted appropriation:
(a) Appropriations of 50 cubic feet per second or less of surface water for irrigation purposes, when done without a government subsidy;
(b) Appropriations of one cubic foot per second or less of surface water, or of 2,250 gallons per minute or less of groundwater, for any purpose.
(5) Purchase or Sale of Real Property. The following real property transactions by an agency shall be exempt:
(a) The purchase or acquisition of any right to real property;
(b) The sale, transfer, or exchange of any publicly owned real property, but only if the property is not subject to an authorized public use;
(c) The lease of real property when the use of the property for the term of the lease will remain essentially the same as the existing use or when the use under the lease is otherwise exempted by this chapter.
(6) Minor Land Use Decisions. The following land use decisions shall be exempt:
(a) Except upon lands covered by water, the approval of short plats or short subdivisions pursuant to the procedures required by RCW 58.17.060, but not including further short subdivisions or short platting within a plat or subdivision previously exempted under this subsection.
(b) Granting of variances based on special circumstances, not including economic hardship, applicable to the subject property, such as size, shape, topography, location or surroundings and not resulting in any change in land use or density.
(c) Classifications of land for current use taxation under Chapter 84.34 RCW, and classification and grading of forest land under Chapter 84.33 RCW.
(7) School Closures. The adoption and implementation of a plan, program, or decision for the closure of a school or schools shall be exempt. Demolition, physical modification or change of facility from a school use shall not be exempt under this subsection.
(8) Open Burning. Open burning and the issuance of any license for open burning shall be exempt. The adoption of plans, programs, objectives or regulations by any agency incorporating general standards respecting open burning shall not be exempt.
(9) Variances Under Clean Air Act. The granting of variances under RCW 70.94.181 extending applicable air pollution control requirements for one year or less shall be exempt.
(10) Water Quality Certifications. The granting or denial of water quality certifications under the Federal Clean Water Act (Federal Water Pollution Control Act Amendments of 1972, 33 USC 1341) shall be exempt.
(11) Enforcement and Inspections. The following enforcement and inspection activities shall be exempt:
(a) All actions, including administrative orders and penalties, undertaken to enforce a statute, regulation, ordinance, resolution or prior decision. No license shall be considered exempt by virtue of this subsection, nor shall the adoption of any ordinance, regulation or resolution be considered exempt by virtue of this subsection;
(b) All inspections conducted by an agency of either private or public property for any purpose;
(c) All activities of fire departments and law enforcement agencies except physical construction activity;
(d) Any action undertaken by an agency to abate a nuisance or to abate, remove or otherwise cure any hazard to public health or safety. The application of pesticides and chemicals is not exempted by this subsection but may be exempted elsewhere in these guidelines. No license or adoption of any ordinance, regulation or resolution shall be considered exempt by virtue of this subsection;
(e) Any suspension or revocation of a license for any purpose.
(12) Business and Other Regulatory Licenses. The following business and other regulatory licenses are exempt:
(a) All licenses to undertake an occupation, trade or profession;
(b) All licenses required under electrical, fire, plumbing, heating, mechanical, and safety codes and regulations, but not including building permits;
(c) All licenses to operate or engage in amusement devices and rides and entertainment activities, including but not limited to cabarets, carnivals, circuses and other traveling shows, dances, music machines, golf courses, and theaters, including approval of the use of public facilities for temporary civic celebrations, but not including licenses or permits required for permanent construction of any of the above;
(d) All licenses to operate or engage in charitable or retail sales and service activities, including but not limited to peddlers, solicitors, second hand shops, pawnbrokers, vehicle and housing rental agencies, tobacco sellers, close out and special sales, fireworks, massage parlors, public garages and parking lots, and used automobile dealers;
(e) All licenses for private security services, including but not limited to detective agencies, merchant and/or residential patrol agencies, burglar and/or fire alarm dealers, guard dogs, locksmiths, and bail bond services;
(f) All licenses for vehicles for-hire and other vehicle related activities, including but not limited to taxicabs, ambulances, and tow trucks; provided, that regulation of common carriers by the utilities and transportation commission shall not be considered exempt under this subsection;
(g) All licenses for food or drink services, sales, and distribution, including but not limited to restaurant, liquor, and meat;
(h) All animal control licenses, including but not limited to pets, kennels, and pet shops. Establishment or construction of such a facility shall not be considered exempt by this subsection;
(i) The renewal or reissuance of a license regulating any present activity or structure so long as no material changes are involved.
(13) Financial Assistance Grants. The approval of grants or loans by one agency to another shall be exempt, although an agency may at its option require compliance with SEPA prior to making a grant or loan for design or construction of a project. This exemption includes agencies taking nonproject actions that are necessary to apply for federal or other financial assistance.
(14) Local Improvement Districts. The formation of local improvement districts, unless such formation constitutes a final agency decision to undertake construction of a structure or facility not otherwise exempt hereunder.
(15) Information Collection and Research. Basic data collection, research, resource evaluation, requests for proposals (RFPs), and the conceptual planning of proposals shall be exempt. These may be strictly for information gathering, or as part of a study leading to a proposal that has not yet been approved, adopted or funded; this exemption does not include any agency action that commits the agency to proceed with such proposal.
(16) Acceptance of Filings. The acceptance by an agency of any document or thing required or authorized by law to be filed with the agency and for which the agency has no discretionary power to refuse acceptance shall be exempt. No license shall be consider exempt by virtue of this subsection.
(17) Procedural Actions. The proposal or adoption of legislation, rules, regulations, resolutions or ordinances, or of any plan or program relating solely to governmental procedures, and containing no substantive standards respecting use or modification of the environment shall be exempt. Agency SEPA procedures shall be exempt.
(18) Building Codes. The adoption by ordinance of all codes as required by the State Building Code Act (Chapter 19.27 RCW).
(19) Adoption of Noise Ordinances. The adoption by cities of resolutions, ordinances, rules or regulations concerned with the control of noise which do not differ from regulations adopted by the Department of Ecology under Chapter 70.107 RCW. When a city proposes a noise resolution, ordinance, rule or regulation, a portion of which differs from the applicable state regulations (and thus required approval of the Department of Ecology under RCW 70.107.060(4)), SEPA compliance may be limited to those items which differ from state regulations.
(20) Review and Comment Actions. Any activity where one agency reviews or comments upon the actions of another agency or another department within an agency shall be exempt.
(21) Utilities. The utility-related actions listed below shall be exempt, except for installation, construction, or alteration on lands covered by water. The exemption includes installation and construction, relocation when required by other governmental bodies, repair, replacement, maintenance, operation or alteration that does not change the action from an exempt class:
(a) All communications lines, including cable TV, but not including communication towers or relay stations;
(b) All stormwater, water and sewer facilities, lines, equipment, hookups or appurtenances including, utilizing or related to lines eight inches or less in diameter;
(c) All electric facilities, lines, equipment or appurtenances, not including substations, with an associated voltage of 55,000 volts or less, and the overbuilding of existing distribution lines (55,000 volts or less) with transmission lines (more than 55,000 volts), and the undergrounding of all electric facilities, lines, equipment or appurtenances;
(d) All natural gas distribution (as opposed to transmission) lines and necessary appurtenant facilities and hookups;
(e) All developments within the confines of any existing electric substation, reservoir, pump station or well; provided, that additional appropriations of water are not exempted by this subsection;
(f) Periodic use of chemical or mechanical means to maintain a utility or transportation right-of-way in its design conditions; provided, that chemicals used are approved by the Washington State Department of Agriculture and applied by licensed personnel. This exemption shall not apply to the use of chemicals within watersheds that are controlled for the purpose of drinking water quality in accordance with WAC 248-54-660;
(g) All grants of rights-of-way by agencies to utilities for use for distribution (as opposed to transmission) purposes;
(h) All grants of franchises by agencies to utilities;
(i) All disposals of rights-of-way by utilities.
(22) Natural Resources Management. In addition to the other exemption contained in this section, the following natural resources management activities shall be exempt:
(a) Licenses or approvals to remove firewood;
(b) Issuance of leases for school sites;
(c) Development of recreational sites not specifically designed for all-terrain vehicles and not including more than 12 campsites;
(d) Periodic use of chemical or mechanical means to maintain public park and recreational land; provided, that chemicals used are approved by the Washington State Department of Agriculture and applied by licensed personnel. This exemption shall not apply to the use of chemicals within watersheds that are controlled for the purpose of drinking water quality in accordance with WAC 248-54-660;
(e) Issuance of rights-of-way, easements and use permits to use existing roads in nonresidential areas;
(f) Establishment of natural area preserves to be used for scientific research and education and for the protection of rare flora and fauna, under the procedures of Chapter 79.70 RCW.
(g) Emergencies. Action that must be undertaken immediately or within a time too short to allow full compliance with this chapter, to avoid an imminent threat to public health or safety, to prevent an imminent danger to public or private property, or to prevent an imminent threat of serious environmental degradation, shall be exempt. Agencies may specify these emergency actions in their procedures.
(23) Whenever the town 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).
(24) If the responsible official believes that special circumstances warrant further environmental review, he may so direct, even for categorically exempt projects. (Ord. 280 § 21.03.070, 1999)
16.05.080 Use of exemptions.
(1) Determine Exemptions. When the town receives an application for a license or initiates a proposal, the responsible official shall determine if whether the license or proposal is exempt. The town’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 town shall not require completion of an environmental checklist for an exempt proposal.
(2) Consider Proposals. In determining whether or not a proposal is exempt, the town shall make certain the proposal is properly defined and identify the governmental permits and licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the town shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.
(3) Exempt Actions. If the proposal includes both exempt and nonexempt actions, the town may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:
(a) The town 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 an exempt action that might lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and
(c) A department may withhold approval of an exempt action 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. 280 § 21.03.080, 1999)
16.05.090 Environmental checklist.
(1) Filing with Application. A completed environmental checklist (or a copy), in the form provided in WAC 197-11-060, 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 town and applicant agree that an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The town shall use the checklist to determine the lead agency and, if the town is the lead agency, for making the threshold determination.
(2) Private or Town Proposals. For private proposals, the town will require the applicant to complete the environmental checklist, providing assistance as necessary. For town proposals, the department initiating the proposal must complete the environmental checklist for that proposal.
(3) Town Preparation of Private Proposal Checklist. The town and not the private applicant will complete the environmental checklist if the town has technical information that is unavailable to the applicant or the applicant has previously given inaccurate information. The costs of preparing the checklist must be paid by the applicant before final approval.
(4) Changes or Additions to Checklist. During the review of the environmental checklist the town may make such changes or additions to the environmental checklist as are necessary to make it an accurate statement. Alternatively, the town may return the checklist to the applicant for revisions and/or additional information. (Ord. 280 § 21.03.090, 1999)
16.05.100 Mitigated DNS – Early notice.
(1) Conditions for Issuance. 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.
(2) Request by Applicant. An applicant may request in writing early notice of the likelihood of a determination of significance (DS). The request must:
(a) Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is the lead agency; and
(b) Precede the town’s actual threshold determination for the proposal.
(3) Response. The responsible official should respond within 15 working days. The response should:
(a) Be written;
(b) State whether the town currently considers issuance of a DS likely, and, if so, the general or specific area(s) of concern that are leading the town to consider a DS; and
(c) State that the applicant may change or clarify his proposal to mitigate the indicated impacts and revise his environmental checklist and/or permit or license application as necessary to reflect the changes or clarifications.
(4) Town Assistance. As much as possible, the town should assist the applicant with identification of impacts to the extent necessary to formulate mitigating measures.
(5) Changed Proposal. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the town shall base its threshold determination on the changed or clarified proposal within 15 days of receiving the changed or clarified proposal.
(a) If the town 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 town shall issue and circulate a determination of nonsignificance (DNS) under WAC 197-11-340(2).
(b) If the town indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the town 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 storm water runoff” are inadequate, whereas proposals to “muffle machinery to “X” decibel” or “construct 200-foot stormwater retention pond at “Y” location” are adequate.
(d) Mitigating 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) Comment Period. A mitigated DNS is issued under either WAC 197-11-340(2), requiring a 14-day comment period and public notice, or WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.
(7) Conditions of Approval. Mitigating measures incorporated in a mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any terms or conditions of the permit, or enforced in any manner specifically prescribed by the town.
(8) Evaluate Threshold Decision. If the town’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS of the proposal, the town should evaluate the threshold determination to ensure consistency with WAC 197-11-340(3)(a) (withdrawal of a DNS).
(9) Written Response. The town’s written response under subsection (2) of this section (early notice) 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 town to consider the clarifications or changes in its threshold determination. (Ord. 280 § 21.03.100, 1999)
Article IV. Environmental Impact
Statements (EIS)
16.05.110 Purpose of this part and adoption by reference.
This part contains the rules for preparing environmental impact statements. The town adopts the following sections and future amendments of the Washington Administrative Code by reference, as supplemented by this part:
WAC
197-11-400 Purpose of EIS.
197-11-402 General requirements.
197-11-405 EIS types.
197-11-406 EIS timing.
197-11-408 Scoping.
197-11-410 Expanded scoping. (Optional.)
197-11-420 EIS preparation.
197-11-425 Style and size.
197-11-430 Format.
197-11-435 Cover letter or memo.
197-11-440 EIS contents.
197-11-442 Contents of EIS on nonproject proposals.
197-11-443 EIS contents when prior nonproject EIS.
197-11-444 Elements of the environment.
197-11-448 Relationship of EIS to other considerations.
197-11-450 Cost-benefit analysis.
197-11-455 Issuance of DEIS.
197-11-460 Issuance of FEIS.
(Ord. 280 § 21.04.110, 1999)
16.05.120 Preparation of EIS – Additional considerations.
(1) Responsibility. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the town, a designated town department, or town consultant, under the direction of the responsible official. Before the town issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.
(2) Preparation. The draft and final EIS or draft and final supplemental EIS shall be prepared by the town, the applicant, or by a consultant selected by the town or the applicant. If the responsible official requires an EIS and determines that someone other than the town 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 town’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.
(3) Information. The town may require an applicant to provide information the town does not possess and make 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 town may request under another ordinance or statute.) (Ord. 280 § 21.04.120, 1999)
16.05.125 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 determinations or perform any other function or purpose under this chapter:
(1) Economy.
(2) Social policy analysis.
(3) Cost-benefit analysis. (Ord. 280 § 21.04.125, 1999)
Article V. Commenting
16.05.128 Purpose of this part and adoption by reference.
This part contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The town adopts the following sections and future amendments of the Washington Administrative Code by reference, as supplemented in this part:
WAC
197-11-500 Purpose of this part.
197-11-502 Inviting comment.
197-11-504 Availability and cost of environmental documents.
197-11-508 SEPA register.
197-11-510 Public notice.
197-11-535 Public hearings and meetings.
197-11-545 Effect of no comment.
197-11-550 Specificity of comments.
197-11-560 FEIS response to comments.
197-11-570 Consulted agency costs to assist lead agency.
(Ord. 280 § 21.05.128, 1999)
16.05.130 Public notice.
(1) Integration of Notices. Whenever possible, the town shall integrate the public notice required under this section with existing notice procedures for the town’s nonexempt permit(s) or approval(s) required for the proposal.
(2) Procedure. Whenever the town issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the town 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 an environmental document is issued concurrently with the notice of application, the public notice requirements for the notice of application in RCW 36.70B.110(4) will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1).
(c) If no public notice is otherwise required for the permit or approval, the town 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; and/or
(iii) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered.
(d) Whenever the town issues a DS under WAC 197-11-360(3), the town shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.
(3) Notice Issued in Optional DNS Process. If a DNS is issued using the optional DNS process, the public notice requirements for a notice of application in RCW 36.7013.110(4) as supplemented by the requirements in WAC 197-11-355 will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1)(b).
(4) Availability of Documents. Whenever the town issues a DEIS under WAC 197-11-455(5) or an 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
(b) Posting the property, for site-specific proposals; and/or
(c) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located; and/or
(d) Notifying public or private groups that have expressed interest in a certain proposal or in the type of proposal being considered.
(5) Planned Actions. Public notice for projects that qualify as planned actions shall be tied to the underlying permit as specified in WAC 197-11-172(3).
(6) Financial Responsibility for Notice. The town may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 280 § 21.05.130, 1999)
16.05.140 Designation of official to perform consulted agency responsibilities for the town.
(1) Mayor. The mayor shall be responsible for preparation of written comments for the town in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.
(2) Responsible for Compliance. The mayor shall be responsible for the town’s compliance with WAC 197-11-550 whenever the town 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 town. (Ord. 280 § 21.05.140, 1999)
Article VI. Using Existing Environmental Documents
16.05.150 Purpose of this part and adoption by reference.
This part contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the town’s own environmental compliance. The town adopts the following sections and future amendments of the Washington Administrative Code by reference:
WAC
197-11-164 Planned actions – Definition and criteria.
197-11-168 Ordinances or resolutions designating planned actions – Procedures for adoption.
197-11-172 Planned actions – Project review.
197-11-600 When to use existing environmental documents.
197-11-610 Use of NEPA documents.
197-11-620 Supplemental environmental impact statement – Procedures.
197-11-625 Addenda – Procedures.
197-11-630 Adoption – Procedures.
197-11-635 Incorporation by reference – Procedures.
197-11-640 Combining documents.
(Ord. 280 § 21.06.150, 1999)
Article VII. SEPA and Agency Decisions
16.05.155 Purpose of this section and adoption by reference.
This part contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The town adopts the following sections and future amendments of the Washington Administrative Code by reference, as supplemented in this part:
WAC
197-11-650 Purpose of this part.
197-11-655 Implementation.
197-11-660 Substantive authority and mitigation.
197-11-680 Appeals.
(Ord. 280 § 21.07.155, 1999)
16.05.160 Substantive authority.
(1) Supplementary Policies. This chapter supplements all existing regulations, powers, and duties in the existing authorization of the town of Skykomish, King County.
(2) Conditions. The town may attach conditions to a permit or approval for a proposal so long as:
(a) Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and
(b) Such conditions are in writing; and
(c) The mitigation measures included in such conditions are reasonable and capable of being accomplished; and
(d) The town has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and
(e) Such conditions are based on one or more policies in subsection (4) of this section and cited in the license or other decision document.
(3) Denial of Permit or of Proposal Approval. The town may deny a permit or license for a proposal on the basis of SEPA as long as:
(a) A finding that the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this chapter; and
(b) A finding is made that there are not reasonable mitigating 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 (4) of this section and identified in writing in the decision document.
(4) Exercise of Authority – Policies. The town designates and adopts by reference the following policies as the basis for the town’s exercise of authority pursuant to this section:
(a) The town 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 their responsibilities to future generations as trustees of the environment;
(ii) Provide for all people of Washington a safe, healthful, productive, and aesthetically and culturally pleasing environment;
(iii) Attain the widest range of beneficial use of the environment without degradation, risk to health and safety, or other undesirable and unintended consequences;
(iv) Preserve important historic, cultural, and natural aspects of our national heritage;
(v) Maintain, whenever 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 the maximum attainable recycling of depletable resources.
(b) The town recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
(c) All town ordinances, rules, policies, and actions shall be construed consistently with these policies.
(i) The town adopts by reference the policies in the following plans and ordinances as they now exist or may be amended in the future:
(A) Town of Skykomish comprehensive plan (Ordinance 234);
(B) Skykomish zoning ordinance (SMC Title 18);
(C) Skykomish flood damage prevention ordinance (Chapter 16.10 SMC);
(D) Skykomish building code adoption (Chapter 15.05 SMC);
(E) Skykomish shoreline master program (Chapter 16.20 SMC);
(F) Skykomish clearing and grading ordinance (Chapter 15.20 SMC);
(G) Adoption of the comprehensive King County solid waste management plan (Ordinance 205). (Ord. 280 § 21.07.160, 1999)
16.05.170 Appeals.
(1) Appeal Procedures. The town of Skykomish establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:
(a) Any agency or person may appeal the town’s procedural compliance with Chapter 197-11 WAC for issuance of a final DNS. Appeal of the DNS must be made to the town council within 15 days of the date the DNS is final (see WAC 197-11-390(2)(a)).
(b) For any appeal under this subsection, the town shall provide for a record that shall consist of the following:
(i) Findings and conclusions;
(ii) Testimony under oath; and
(iii) A taped or written transcript.
(c) The town may require the appellant to provide an electronic transcript.
(d) The procedural determination by the town’s responsible official shall carry substantial weight in any appeal proceeding.
(e) The town 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. 280 § 21.07.170, 1999)
16.05.173 Notice and statute of limitations.
(1) Public Notice. The town, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the town clerk, applicant, or proponent pursuant to RCW 43.21C.080. (Ord. 280 § 21.07.173, 1999)
Article VIII. Definitions
16.05.175 Purpose of this part and adoption by reference.
This part contains uniform usage and definition of terms under SEPA. The town adopts the following sections and future amendments of the Washington Administrative Code by reference, as supplemented by WAC 173-806-030:
WAC
197-11-700 Definitions.
197-11-702 Act.
197-11-704 Action.
197-11-706 Addendum.
197-11-708 Adoption.
197-11-710 Affected tribe.
197-11-712 Affecting.
197-11-714 Agency.
197-11-716 Applicant.
197-11-718 Built environment.
197-11-720 Categorical exemption.
197-11-721 Closed record appeal.
197-11-722 Consolidated appeal.
197-11-724 Consulted agency.
197-11-726 Cost-benefit analysis.
197-11-728 County/city.
197-11-730 Decision-maker.
197-11-732 Department.
197-11-734 Determination of nonsignificance (DNS).
197-11-736 Determination of significance (DS).
197-11-738 EIS.
197-11-740 Environment.
197-11-742 Environmental checklist.
197-11-744 Environmental document.
197-11-746 Environmental review.
197-11-750 Expanded scoping.
197-11-752 Impacts.
197-11-754 Incorporation by reference.
197-11-756 Lands covered by water.
197-11-758 Lead agency.
197-11-760 License.
197-11-762 Local agency.
197-11-764 Major action.
197-11-766 Mitigated DNS.
197-11-768 Mitigation.
197-11-770 Natural environment.
197-11-772 NEPA.
197-11-774 Nonproject.
197-11-775 Open record hearing.
197-11-776 Phased review.
197-11-778 Preparation.
197-11-780 Private project.
197-11-782 Probable.
197-11-784 Proposal.
197-11-786 Reasonable alternative.
197-11-788 Responsible official.
197-11-790 SEPA.
197-11-792 Scope.
197-11-793 Scoping.
197-11-794 Significant.
197-11-796 State agency.
197-11-797 Threshold determination.
197-11-799 Underlying governmental action.
(Ord. 280 § 21.08.175, 1999)
Article IX. Categorical Exemptions
16.05.180 Purpose of this part and adoption by reference.
This part contains, and 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 (Critical areas):
WAC
197-11-800 Categorical exemptions.
197-11-880 Emergencies.
197-11-890 Petitioning DOE to change exemptions.
(Ord. 280 § 21.09.180, 1999)
Article X. Agency Compliance
16.05.185 Purpose of this part and adoption by reference.
This part contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating categorical exemptions that do not apply within critical areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The town adopts the following sections and future amendments of the Washington Administrative Code by reference.
WAC
197-11-900 Purpose of this part.
197-11-902 Agency SEPA policies.
197-11-916 Application to ongoing actions.
197-11-920 Agencies with environmental expertise.
197-11-922 Lead agency rules.
197-11-924 Determining the lead agency.
197-11-926 Lead agency for governmental proposals.
197-11-928 Lead agency for public and private proposals.
197-11-930 Lead agency for private projects with one agency with jurisdiction.
197-11-932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a city/county.
197-11-934 Lead agency for private projects requiring licenses from a local agency, not a city/county, 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. 280 § 21.10.185, 1999)
16.05.190 Critical areas.
(1) Unidentified Exemptions. The town has designated critical areas under the standards of WAC 197-11-908. The map(s) of such areas are adopted by reference. For each critical area, as identified by the standards in the Chapter 16.15 SMC, Critical Areas, and the accompanying maps, the exemptions within WAC 197-11-800 that are inapplicable for that area are:
WAC
197-11-800 (1) Minor new construction – Flexible thresholds.
197-11-800 (2)(d) Septic tank installation.
197-11-800 (2)(g) Installation of impervious underground tanks.
197-11-800 (6)(a) Minor land use decisions – Short plat approval.
197-11-800 (24) Utilities.
(2) The scope of environmental review of actions within these areas shall be limited to:
(a) Documenting whether the proposal is consistent with requirements of Chapter 16.15 SMC, Critical Areas; and
(b) Evaluating potentially significant impacts on the critical area resources not adequately addressed by GMA planning documents and development regulations, if any, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and with other applicable environmental review laws.
(3) Categorical Exemptions Apply. All categorical exemptions not listed in subsection (1) of this section apply whether or not the proposal will be located in a critical area.
(4) Consideration by Town. The town will treat proposals located wholly or partially within a critical area no differently than other proposals in making threshold determinations. The town will not automatically require an EIS for a proposal merely because it is located in a critical area. (Ord. 280 § 21.10.190, 1999)
16.05.200 Fees.
The town shall establish fees by town council resolution in accordance with the provisions of this chapter:
(1) Threshold Determination. For every environmental checklist the town will review when it is the lead agency, the town shall collect a fee from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided for making a threshold determination shall not begin to run until payment of the fee.
(2) Environmental Impact Statement.
(a) When the town is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS will be prepared by employees of the town, the town shall charge and collect a reasonable fee from the applicant to cover costs incurred by the town in preparing the EIS, including overhead. The responsible official shall advise the applicant of the projected costs far the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.
(b) The responsible official may determine that the town will contract directly with a consultant for preparation of an EIS, or portion of the EIS, for activities initiated by some persons or entity other then the town and may bill such costs and expenses incurred including overhead directly to the applicant. The town may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the town and applicant after a call for proposals.
(c) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsections (a) or (b) of this section which remain after incurred costs are paid.
(3) Expense of Notice. The town may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.
(4) No Consultation Fee. The town shall not collect a fee for performing its duties as a consulted agency.
(5) Fee for Copies. The town may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided for by Chapter 42.17 RCW. (Ord. 280 § 21.10.200, 1999)
16.05.205 Effective date.
The ordinance codified in this chapter shall take effect and be in full force and effect from and after the date of its passage and approval as required by law. (Ord. 280 § 21.10.205, 1999)
16.05.220 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. 280 § 21.10.220, 1999)
Article XI. Forms
16.05.230 Adoption by reference.
The town adopts the following forms and sections of the Washington Administrative Code by reference:
WAC
197-11-960 Environmental checklist.
197-11-965 Adoption notice.
197-11-970 Determination of nonsignificance (DNS).
197-11-980 Determination of significance and scoping notice (DS).
197-11-985 Notice of assumption of lead agency status.
197-11-990 Notice of action.
(Ord. 280 § 21.04.230, 1999)