Chapter 14.05 SEPA

The city of South Bend (hereafter referred to as the “city”) adopts this policy under the State Environmental Policy Act (SEPA), RCW 43.21C.120 and the SEPA rules, WAC 197‑11‑904 for the purpose of establishing an environmental review of SEPA in city governmental decisionmaking. It is the intent of the city that compliance with this policy shall constitute complete procedural compliance with SEPA and the SEPA rules. (Ord. 1181 § 1.01, 1992).

14.05.020 Title.

This policy constitutes and may be cited as the city of South Bend environmental policy. (Ord. 1181 § 1.02, 1992).

14.05.030 Effective date.

The effective date of this policy is April 6, 1992. (Ord. 1181 § 1.03, 1992).

14.05.040 Severability.

If any provision of this policy or its application to any person or circumstance is held invalid, such decision shall not affect the validity of the remaining portions of the policy or its application to other persons or circumstances. (Ord. 1181 § 1.04, 1992).

14.05.050 Applicability.

The requirements of this policy are applicable to all actions of the city and its departments, officers, boards, commissions, and councils; provided, that the extent to which the provisions hereof apply to proposals initiated prior to the effective date of this policy shall be governed by WAC 197‑11‑955. (Ord. 1181 § 1.05, 1992).

14.05.060 SEPA rules – Adoption by reference.

The city adopts by reference the following sections or subsections of Chapter 197‑11 WAC as now or hereafter amended and as supplemented by this chapter:

WAC

197‑11‑040 Definitions.

197‑11‑050 Lead agency.

197‑11‑055 Timing of the SEPA process.

197‑11‑060 Content of environmental review.

197‑11‑070 Limitations on actions during SEPA process.

197‑11‑080 Incomplete or unavailable information.

197‑11‑090 Supporting documents.

197‑11‑100 Information required of applicants.

(Ord. 1181 § 1.06, 1992).

Article II. Definitions

14.05.070 General.

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

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

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

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

D. “Early notice” means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal. (Ord. 1181 § 2.01, 1992).

14.05.080 SEPA rules – Adoption by reference.

The city adopts by reference the following sections or subsections of Chapter 197‑11 WAC as now or hereafter amended and as supplemented by WAC 173‑806‑040:

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.

197‑11‑722 Consolidated appeal.

197‑11‑724 Consulted agency.

197‑11‑726 Cost‑benefit analysis.

197‑11‑728 County/city.

197‑11‑730 Decisionmaker.

197‑11‑732 Department.

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

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

197‑11‑738 EIS.

197‑11‑740 Environment.

197‑11‑742 Environmental checklist.

197‑11‑744 Environmental document.

197‑11‑746 Environmental review.

197‑11‑748 Environmentally sensitive area.

197‑11‑750 Expanded scoping.

197‑11‑752 Impacts.

197‑11‑754 Incorporation by reference.

197‑11‑756 Lands covered by water.

197‑11‑758 Lead agency.

197‑11‑760 License.

197‑11‑762 Local agency.

197‑11‑764 Major action.

197‑11‑766 Mitigated DNS.

197‑11‑768 Mitigation.

197‑11‑770 Natural environment.

197‑11‑772 NEPA.

197‑11‑774 Nonproject.

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. 1181 § 2.02, 1992).

Article III. Procedure

14.05.090 Designation of responsible official.

A. For all proposals, public and private, the SEPA coordinator shall be the city supervisor or as so designated by the chief administrative officer.

B. For public proposals, the head (administrative official) of the department making the proposal shall be the responsible official. For private proposals, the head (administrative official) of the department with primary responsibility for approving the permits and licenses for the proposal shall be the responsible official. When multiple officials have permitting authority, the assignment of responsibility shall be determined by the SEPA coordinator.

C. 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 SBMC 14.05.060.

D. All actions, decisions and determinations to be taken or made, pursuant to this chapter, by administrative officials, departments, or consulted agencies shall be subject final review and approval by the SEPA coordinator, subject to appeal pursuant to Article X of this chapter. (Ord. 1181 § 3.01, 1992).

14.05.100 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. 1181 § 3.02, 1992).

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

A. The city SEPA coordinator shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

B. The city SEPA coordinator 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.

C. The city may assign all, or a part, or their responsibilities pursuant to subsections (A) and (B) of this section to the SEPA coordinator, subject to final review and action by the board. (Ord. 1181 § 3.03, 1992).

14.05.120 Time limits applicable to the SEPA process.

The following time limits (expressed in calendar days, unless otherwise indicated) generally apply to the processing of all private projects and to those governmental proposals submitted to city by other agencies:

A. Categorical Exemptions. A determination that a project is categorically exempt shall be made within 10 business days of submission of an adequate application.

B. Threshold Determination.

1. Threshold determinations which can be made based solely upon review of the environmental checklist submitted by applicant shall be completed within 15 days of submission of an adequate application and the completed checklist and payment of the fee provided for in SBMC 14.05.140.

2. Threshold determinations requiring further information from the applicant or consultation with other agencies with jurisdiction shall be completed within 15 days of receiving the requested information from the applicant or the consulted agency; requests by the lead department for such further information shall be made within 15 days of the submission of an adequate application and completed checklist; when a request for further information is submitted to an applicant, the lead department shall wait a maximum of 30 days for the applicant to respond. A lack of response without demonstration of good cause shall result in suspension of the threshold determination; when a request for further information is submitted to a consulted agency, the lead department shall wait a maximum of 30 days for the consulted agency to respond. No response by a consulted agency shall be interpreted as a favorable response.

3. Threshold determinations which require that further studies, including field investigations, be initiated by the lead department shall be completed within 30 days of submission of an adequate application and the completed checklist.

4. Threshold determinations for proposals where the applicant recommends in writing that an EIS be prepared because of probable significant adverse environmental impact(s) described in the application shall be made within 15 days of receiving an adequate application and completed checklist.

C. Extensions. Time extensions may be granted if good cause can be shown and requested in writing before the end of a deadline. (Ord. 1181 § 3.04, 1992).

14.05.130 Additional timing consideration.

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. (Ord. 1181 § 3.05, 1992).

14.05.140 Fees.

The following fees which are in addition to any other fees provided for by law shall be charged when the city is the lead agency for a noncity proposal:

A. Threshold Determinations. For every threshold determination, a fee of $100.00 shall be required of the proponent of the proposal, except that a fee of $150.00 shall be required on applications for subdivisions, commercial/industrial rezones and conditional use applications for excavations and landfills; provided, that no threshold determination fee shall be charged for a proposal which would be categorically exempt but for the provisions of WAC 173‑806‑190. This fee shall be collected prior to undertaking the threshold determination, and the time periods provided in SBMC 14.05.120 for making a threshold determination shall not begin to run until payment of the fee.

B. EIS.

1. The following EIS preparation and distribution costs shall be borne by the applicant or proponent:

a. Actual cost of the time spent by regular city professional, technical and clerical employees required for the preparation and distribution of the applicant’s impact statement; provided, that the city shall provide the applicant with an accounting; and provided further, that no costs shall be charged for processing of the application which would be incurred with or without the requirement for an EIS or which are covered by the regular application fee; and

b. Additional costs, if any, for experts not employed by the city, texts, printing, advertising, and for any other actual costs required for the preparation and distribution of the EIS; and

c. When an EIS is to be prepared by a consultant actual consultant fees which shall be solely the responsibility of and billed directly to the applicant or proponent; provided, that the applicant or proponent shall also bear such additional city costs as provided for in subsection (A)(1)(a) and (b) of this section as are incurred in the review, revision, approval and distribution of the EIS.

2. When an EIS is to be prepared by the city following consultation with the applicant, the lead department shall inform the applicant of estimated costs and the completion date for the draft EIS prior to accepting the deposit required by subsection (B)(3) of this section. Such estimate shall not constitute an offer or covenant by the lead department nor shall it be binding upon the city.

3. In order to assure payment of the above city costs, the applicant or proponent shall post with the city cash, a surety bond or other security sufficient and acceptable in the sole discretion of the city; provided, that for consultant prepared EISs, the security may be in such lesser amount as deemed sufficient by the responsible official to cover estimated city costs. If accrued city costs will exceed the posted security, EIS preparation shall cease following reasonable notice to the applicant until posting by the applicant or proponent of such additional security as deemed sufficient by the responsible official to secure the payment of estimated additional city costs.

4. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under (B)(1) through (3) of this section which remain after incurred costs are paid.

C. The city shall collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to applicant’s proposal.

D. The city may charge any person for copies of any document prepared under this chapter and for mailing the document in the manner provided by Chapter 42.17 RCW. (Ord. 1181 § 3.06, 1992).

14.05.150 SEPA rules – Adoption by reference.

The city adopts by reference the following sections or subsections of Chapter 197‑11 WAC as now or hereafter amended and as supplemented by this chapter:

WAC

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. 1181 § 3.07, 1992).

Article IV. Lead Agency Status and Agency Compliance

14.05.160 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 pursuant to the criteria set forth in WAC 197‑11‑050 and 197‑11‑922 through 197‑11‑940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

B. When the city is the lead agency for a proposal, the department receiving the application shall 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 departments shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197‑11‑600. In some cases, the city may conduct supplemental environmental review under WAC 197‑11‑600.

D. If the city or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197‑11‑922 through 197‑11‑940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197‑11‑946 within the 15‑day time period. Any such petition on behalf of the city may be initiated by the city.

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 197‑11‑944; provided, that the responsible official and any department that will incur responsibilities as the result of such agreement 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.

G. All determinations of lead agency status and responsibilities shall be immediately reported to the SEPA coordinator, and shall be subject to review and final approval by the SEPA coordinator. (Ord. 1181 § 4.01, 1992).

14.05.170 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 SEPA coordinator 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 SEPA coordinator must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The SEPA coordinator shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. Any actions, decisions, or determinations made by the SEPA coordinator pursuant to this section shall be submitted to the city for review and final approval before such action, decision, or determination is actually taken or made. (Ord. 1181 § 4.02, 1992).

14.05.180 SEPA rules – Adoption by reference.

Subject to the provisions of SBMC 14.05.090, with respect to the duties and responsibilities of the SEPA coordinator, the city adopts by reference the following sections of Chapter 197‑11 WAC as now or hereafter supplemented by this chapter:

WAC

197‑11‑916 Application to ongoing actions.

197‑11‑920 Agencies with environmental expertise.

197‑11‑922 Lead agency rules.

197‑11‑924 Determining the lead agency.

197‑11‑926 Lead agency for governmental proposals.

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

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

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

197‑11‑934 Lead agency for private projects requiring licenses from a local agency, not a city, and one or more state agencies.

197‑11‑938 Lead agencies for specific proposals.

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. 1181 § 4.03, 1992).

Article V. Categorical Exemptions and Threshold Determinations

14.05.190 Purpose of this part and adoption by reference.

This section contains the rules for deciding whether a proposal has a probable significant, adverse environmental impact requiring an EIS to be prepared. This section also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following WAC 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 nonsignificance (DNS)/initiation of scoping.

197‑11‑390 Effect of threshold determination.

197‑11‑800 Categorical exemptions.

197‑11‑880 Emergencies.

197‑11‑890 Petitioning DOE to change exemptions.

(Ord. 1181 § 5.01, 1992).

14.05.200 Use of exemptions.

A. Each department within the city that receives an application for a license or permit, 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.

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 197‑11‑080). 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.

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 not approved.

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. 1181 § 5.02, 1992).

14.05.210 Environmentally sensitive areas.

A. The city council 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 department of planning, city department of public works, 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.

B. 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 EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.

C. 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. (Ord. 1181 § 5.03, 1992).

14.05.220 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.

C. The city may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

1. The city has technical information on a question or questions that is unavailable to the private applicant; or

2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 1181 § 5.04, 1992).

14.05.230 Mitigated determinations of nonsignificance.

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 shall respond to the request for early notice within 15 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 is/are leading the city to consider a DS; and

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

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

E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and shall make the determination within 15 days of receiving the changed or clarified proposal:

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

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

3. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent storm water runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200‑foot storm water retention pond at Y location” are adequate.

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

F. A mitigated DNS is issued under WAC 197‑11‑340(2), requiring a 15‑day comment period and public notice.

G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner 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(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 clarification or changes to a proposal, as opposed to a written request for early notice, shall not bind the city to issue a mitigated DNS. (Ord. 1181 § 5.05, 1992).

Article VI. Environmental Impact Statement (EIS)

14.05.240 Purpose of this part and adoption by reference.

This section contains the rules for preparing environmental impact statements. The city adopts the following WAC 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 EIS.

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. 1181 § 6.01, 1992).

14.05.250 Preparation of EIS – Additional considerations.

A. Preparation of draft and final EIS (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of the department having lead agency status under the direction of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197‑11 WAC.

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

C. In the event that the EIS is to be prepared by the city, the city may retain experts as needed. In addition, the responsible official may request the applicant to provide data and information relevant to any and all areas covered by the EIS, subject to limitations contained in this chapter. If the applicant fails or refuses to provide data or information required for preparation of an adequate DEIS or for adequate response to critical comments received on a DEIS, the responsible official may refuse to further process or consider the private application.

D. The applicant shall bear and secure payment of city costs in accordance with SBMC 14.05.140. (Ord. 1181 § 6.02, 1992).

14.05.260 Public hearing.

A. Whenever a public hearing on the environmental impact of a proposal is required pursuant to WAC 197‑11‑535(2), and the city is the lead agency for such proposal, the departments with jurisdiction shall have representatives in attendance. In addition, the SEPA coordinator shall be in attendance. Notice of said hearing shall be as follows:

1. Publishing notice in a newspaper of general circulation in the city or general area where the proposal is located; and

2. Mailing of written notice to agencies with jurisdiction and to all property owners of record within a 300-foot radius of the external boundaries of the subject property.

B. The notice requirement of this section shall not apply to nonproject actions.

C. The notice requirements of this section shall be completed no less than 10 days prior to the hearing. (Ord. 1181 § 6.03, 1992).

Article VII. Public Notice and Commenting

14.05.270 Adoption by reference.

This section contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The city adopts the following WAC sections 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.

197‑11‑535 Public hearings and meetings.

197‑11‑545 Effect of no comment.

197‑11‑550 Specificity of comment.

197‑11‑560 FEIS response to comments.

197‑11‑570 Consulted agency costs to assist lead agency.

(Ord. 1181 § 7.01, 1992).

14.05.280 Public notice requirements.

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

3. Whenever the city issues a DS under WAC 197‑11‑360(a), 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.

B. 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:

1. Indicating the availability of the DEIS in any public notice required for a nonexempt license; and

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

3. Notifying the news media. (Ord. 1181 § 7.02, 1992).

14.05.290 Integration of public notice requirements.

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. (Ord. 1181 § 7.03, 1992).

14.05.300 Cost of notice.

The city 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. (Ord. 1181 § 7.04, 1992).

Article VIII. Substantive Authority

14.05.310 Purpose of this part and adoption by reference.

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

WAC

197‑11‑650 Purpose of this part.

197‑11‑655 Implementation.

197‑11‑660 Substantive authority and mitigation.

197‑11‑680 Appeals.

(Ord. 1181 § 8.01, 1992).

14.05.320 Substantive authority.

The city of South Bend may attach conditions to a permit or approval for a proposal; provided, that such conditions are based on one or more policies in Article XI, SEPA Policies, and cited in the permit, approval, license or other document.

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 provided that:

1. Such conditions are necessary to mitigate specific adverse environmental impacts clearly identified in environmental documents prepared pursuant to this chapter and shall be stated in writing by the decisionmaker.

2. The decisionmaker shall cite the city SEPA policy that is the basis of any condition under this title. After such a decision, the city shall make available to the public a document that states the decision. The document shall state the mitigation measures, if any, that will be implemented as a part of the decision, including any monitoring of environmental impacts.

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

4. The responsibility for implementing mitigation measures shall be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Voluntary additional mitigation may occur.

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

6. 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 provided that:

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

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

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

D. The city 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.

Pursuant to RCW 43.21C.060, the South Bend city council formally eliminates appeals to the council of administrative decisions under this title. Proceedings for judicial review of administrative decisions under this title shall be governed by RCW 43.21C.075 and the regulations promulgated thereunder. (Ord. 1181 § 8.02, 1992).

Article IX. Forms

14.05.330 Adoption by reference.

The city adopts the following WAC forms and sections 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 (DS) and scoping notice.

197‑11‑985 Notice of assumption of lead agency status.

197‑11‑990 Notice of action.

(Ord. 1181 § 9.01, 1992).

Article X. Appeals

14.05.340 General.

A. As set forth in SBMC 14.05.090, all actions, decisions, and determinations to be taken or made, pursuant to this chapter, by administrative officials, responsible officials, decisionmakers, lead agencies, departments, or consulted agencies shall be subject to final review and approval by the SEPA coordinator.

Any decisionmaker, head administrative official, or responsible official may appeal any such final action, decision, or determination of the SEPA coordinator to the city council. Any such appeal must be made within five days of such final action, decision, or determination of the SEPA coordinator.

The appellant shall within that time: (1) file a written request for review before the city council with the city clerk-treasurer, and (2) serve a copy of the request on the SEPA coordinator. The council shall within 15 days of the filing of a request for appeal hear the appeal during a regular meeting of the council.

During the period between the initial filing of the request for review, and final decision of the city, all time limits applicable to the SEPA process described in this chapter shall be stayed, but shall recommence immediately upon the rendering of a final decision by the city. The decision of the city with respect to such appeal shall be final and no further appeal shall be allowed.

B. Except as provided by Article III of this chapter, any appeal of an environmental determination made pursuant to this title shall be combined with an appeal of the final decision on the governmental action for which such environmental determination was made.

C. Appeals shall be limited to review of a final threshold determination and the adequacy of a final EIS. Appeals of intermediate steps under this title (e.g., lead agency determination, scoping, draft EIS adequacy) shall not be allowed.

D. Appeals under this title may be filed by any person with standing to appeal the final decision on the underlying governmental action for which an environmental determination was made and shall be filed within the time limits of and processed according to the procedures governing appeals of such final decisions; provided, that appeals under this title may also be filed to review environmental determinations made after supplemental review including determinations made during proceedings conducted following remand from an appeal.

E. Appeals of environmental determinations for administrative permits for which appeals are not otherwise provided by city code shall be conducted as follows: any decision or order of a department, responsible official, decisionmaker, or head administrative official is final unless appealed to the city with 20 days of the decision or order.

The appellant shall within that time: (l) file a written request for review before the city with the clerk-treasurer of the city, and (2) serve a copy of the request on the department, responsible official, decisionmaker, or head administrative official who rendered the decision or order. The city shall within 20 days of the filing of a request for appeal hear the appeal during a regular meeting of the board. Any decision of the city is final unless appealed to the Superior Court of the State of Washington for Pacific County within 30 days of the decision. Notice of the appeal must be served upon the city within the same time period.

F. In an appeal, the procedural determination made pursuant to the title by the responsible official shall be entitled to substantial weight.

G. All appeals under this title shall be governed by the procedures set forth in this chapter and except as provided herein. (Ord. 1181 § 10.01, 1992).

14.05.350 Appeals of conditions or denial of administrative decision.

The city establishes the following appeal procedures subject to SBMC 14.05.340, RCW 43.21C.075 and WAC 197‑11‑680:

A. Any agency or person with standing may appeal the administrative environmental determination for issuance of the following:

1. A Final DNS. Appeal of the DNS must be made to the city by filing a written notice of appeal to the city clerk-treasurer, within 15 days of the date of issuance.

2. A DS. The appeal must be made to the city by filing a written notice of appeal with the city clerk-treasurer, within 15 days of the date of issuance.

B. Additional Submittals.

1. Such appeal shall state fully the grounds therefor.

2. Accompanied with an appeal fee of $50.00. (Ord. 1181 § 10.02, 1992).

14.05.360 Judicial review.

A. No person may seek judicial review of environmental determinations made pursuant to this title unless such person has first appealed such environmental determinations using the procedures set forth in the preceding sections of this chapter.

B. Proceedings for judicial review shall be governed by RCW 43.21C.075(5), (6), (7), (8) and (9) and 43.21C.080.

C. Pursuant to the requirements of RCW 43.21C.075(5)(a), the clerk of the city council shall issue an official notice stating the date and place for commencing a judicial appeal at the time the council’s decision on an appeal brought under this chapter is issued. Such notice shall state that a judicial appeal may be commented on or before the thirtieth day (the date of which shall be stated) following the issuance of the council’s decision by bringing an action in the superior court of Pacific County at South Bend, Washington.

D. The notice of intent to commence a judicial appeal required by RCW 43.21C.075(5)(a) shall be filed with the clerk of the city council. (Ord. 1181 § 10.03, 1992).

Article XI. SEPA Policies

14.05.370 Adoption by reference.

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

The city adopts by reference the policies in the following city codes, ordinances, resolutions and plans, as now exists or hereinafter amended, as a possible basis for the exercise of substantive authority in the conditioning or denying of proposals:

A. Chapter 43.21C RCW, State Environmental Policy Act.

B. Pacific County Growth Management Resource Lands and Critical Area Designations and Policies. In addition to the findings and policies of the Pacific County resource lands and critical areas, the following mitigation policies are to exercised on developments such that land uses activities shall be located and designed to minimize conflict:

1. Forest Resource Lands. Notification shall be placed on all subdivision proposals that the adjacent land is in forest resource use and subject to a variety of activities that may not be compatible with residential development.

2. Agricultural Resource Lands.

a. The obligation for buffer strips is to farms that choose to subdivide or transition to a noncompatible use.

b. Existing farm uses are to be protected from adjacent noncompatible development uses.

c. When land containing prime and unique agricultural land is converted, the prime and unique agricultural land uses shall be maintained while allowing for other uses on suitable land.

d. Prime and unique agricultural lands are to be retained within existing and future city boundaries.

e. Agricultural land may be annexed as transitional land into the city limits for urban preferred land uses.

f. Cranberry production is a higher priority use when multiple resource land and critical area designations overlap.

g. Nonagricultural development shall provide buffers and mitigation between development and cranberry production areas. These buffers or transition areas may include increased setbacks to shield spray drift, noise, visual impact and other aspects of active agricultural operations.

h. Aquacultural activities introduced to Willapa Bay shall be compatible with and not disruptive to the natural, biological, and physical dynamic force within the estuary.

i. Upland development shall not impede the natural condition of the estuary.

3. Mineral Resource Lands.

a. Settling ponds shall be used on new rock pit developments to protect water quality and prevent sedimentation.

b. Mining sites shall be located where adjacent land is used for mining, open space, forestry or industrial use and where they can be screened from residential and commercial properties to minimize the extractive operational impacts of blasting, noise, dust, heavy equipment, mines, pits, and vibration. Screening and buffering is the responsibility of the new or expanded mineral extraction development.

c. Sand removal operations shall be separated from tourist and recreational activities.

4. Critical Areas.

a. Wetlands.

i. Development in wetlands shall provide shoreline access through easements, trust accounts for school field trips on the value and function of wetlands, or the proposed enhancement of specific wetland functions associated with the development.

ii. Wetland mitigation shall be based on wetland function and value in addition to overall area of disturbance.

b. Aquifer Recharge Areas.

i. Nonforestry activities and other developments in critical recharge areas must demonstrate to the water purveyor and local governments all potential environmental impacts to the recharge area as a result of the proposed development.

ii. On proposed developments, the effects and impacts of storm water runoff from urban areas should be carefully analyzed and cities and counties should consider retention of all storm water on‑site as an aquifer recharge protection measure.

c. Geologically Hazardous Areas. On new construction, road construction practices shall be modified to avoid erosion, landslide, and slumping.

d. Frequently Flooded Areas.

i. Forest and associated watersheds within a development shall be managed through forest practices or best management practices to reduce flood damage and associated impacts to frequently flooded areas.

ii. Development proposals shall address coastal high hazards and the impact of coastal flooding to loss of life and property.

e. Fish and Wildlife Habitat Areas.

i. Construction activities shall mitigate impact to wildlife displacement and habitat reduction through open space, wetland, and habitat retention areas.

ii. Education shall be considered as a mitigation measure to enhance and conserve wildlife habitat.

iii. Proposed development shall consider as a mitigation measure, the compatibility and use of fish and wildlife habitat within buffer areas.

iv. Proposed fish and wildlife habitat areas shall consider the total habitat value provided rather than habitat needed for a single species. (Ord. 1181 § 11, 1992).