Chapter 16.36 ENVIRONMENTAL POLICY*

The city of Washougal adopts this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA Rules, WAC 197-11-904. (Ord. 1385 (Exh. A), 2000)

16.36.020 Adoption by reference.

The city adopts the following sections or subsections of Chapter 197-11 WAC by reference:

WAC

197-11-030 Policy.

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-055 Timing of the SEPA process.

197-11-060 Content of environmental review.

197-11-070 Limitations on action during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

197-11-158 GMA project review – Reliance on existing plans and regulations.

197-11-164 Planned actions – Definitions and criteria.

197-11-168 Ordinances or resolutions designating planned actions – Procedures for adoption.

197-11-172 Planned actions – Project review.

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.

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.

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination required.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

197-11-340 Determination of nonsignificance (DNS).

197-11-350 Mitigated DNS.

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

197-11-390 Effect of threshold determination.

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping.

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

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

197-11-443 EIS contents on 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.

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 comments.

197-11-560 FEIS response to comments.

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

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.

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemptions.

197-11-722 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.

197-11-750 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.

197-11774 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.

197-11-787 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-798 Threshold determination.

197-11-799 Underlying governmental action.

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-908 Critical areas.

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.

197-11-936 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.

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. 1385 (Exh. A), 2000)

16.36.030 Additional definitions.

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

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

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

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

“SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 1385 (Exh. A), 2000)

16.36.050 Lead agency determination and responsibilities.

(1) The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-922 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.

(2) 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.

(3) When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No city department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency unless required under WAC 197-11-600. In some cases, the city may conduct supplemental environmental review under WAC 197-11-600.

(4) 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 under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city may be initiated by the director of public works.

(5) 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 must approve the agreement.

(6) Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is: which agencies require nonexempt licenses). (Ord. 1385 (Exh. A), 2000)

16.36.055 Additional considerations in time limits applicable to SEPA process.

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

(1) Categorical Exemptions. The city shall identify whether an action is categorically exempt within 14 days of receiving a completed application.

(2) Threshold Determinations.

(a) The city should complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within 30 days of the date an applicant’s adequate application and completed checklist are submitted, but no sooner than the end of the comment period on any notice of application required pursuant to WMC 18.94.080; provided, nothing in this subsection prevents a determination of significance from being issued before the notice of application.

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

(i) The city should request such further information within 21 days of receiving an adequate application and completed environmental checklist;

(ii) The city shall wait no longer than 30 days for a consulted agency to respond;

(iii) The responsible official should complete the threshold determination within 15 days of receiving the requested additional information from the applicant or the consulted agency; provided, that a threshold determination shall not be issued until the expiration of the comment period on any notice of application, and shall be issued at least 15 days prior to any open record predecision hearing required pursuant to Chapter 18.84 WMC.

(c) When the city must initiate further studies, including field investigations, to obtain the information to make the threshold determination, the city should complete the studies within 60 days of receiving an adequate application and a completed checklist. (Ord. 1385 (Exh. A), 2000)

16.36.058 Additional timing considerations.

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

(2) If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. The point at which environmental review may be initiated for specific permits or other licenses requiring detailed project plans and specifications is the submission of a preliminary plat that completely shows the extent of the proposal and any possible impacts. (Ord. 1385 (Exh. A), 2000)

16.36.060 GMA project review – Reliance on existing plans and regulations.

The city endorses the amended procedures of WAC 197-11-158 regarding reliance on existing plans, laws, and regulations for environmental review and any supplemental provisions adopted pursuant to this part, and shall apply such procedures to the review of project proposals where appropriate. (Ord. 1385 (Exh. A), 2000)

16.36.062 Planned actions.

The city endorses the amended procedures of WAC 197-11-164 through 197-11-172 regarding the review of projects which meet the criteria for planned actions in accordance with RCW 43.21C.031; such a planned action does not require a threshold determination or the preparation of an environmental impact statement, but is subject to environmental review and mitigation. (Ord. 1385 (Exh. A), 2000)

16.36.064 SEPA/GMA integration.

The city endorses the amended procedures of WAC 197-11-210 through 197-11-235 regarding the optional integration of SEPA review with actions being considered for adoption under the Growth Management Act and, when used, shall supersede the SEPA process requirements that would otherwise apply. (Ord. 1385 (Exh. A), 2000)

16.36.066 Monitoring.

The city endorses the amended provisions of WAC 197-11-238 encouraging cities planning under GMA to establish a process for monitoring the cumulative impacts of permit decisions for use in updating plans and information on existing conditions of the built and natural environment. (Ord. 1385 (Exh. A), 2000)

16.36.068 SEPA/Model Toxics Control Act integration.

The city endorses the amended procedures of WAC 197-11-250 through 197-11-268 regarding the integration of SEPA procedural requirements and documents with those of the Model Toxics Control Act (MTCA), Chapter 70.105D RCW and Chapter 173-340 WAC. (Ord. 1385 (Exh. A), 2000)

16.36.070 Flexible thresholds for categorical exemptions.

(1) The city establishes the following exempt levels for minor new construction under WAC 197-11-800(1)(b) based on local conditions:

(a) For residential dwelling units in WAC 197-11-800(1)(b)(i), up to six dwelling units;

(b) For residential dwelling units in WAC 197-11-800(1)(b)(i), up to 20 dwellings in the town center core and town center east village zone districts;

(d) For office, school, commercial recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii), up to 4,000 square feet and/or up to 20 parking spaces;

(e) For office, school, commercial recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii), up to 12,000 square feet and/or up to 20 parking spaces in the town center core and town center east village zone districts;

(f) For parking lots in WAC 197-11-800(1)(b)(iv), up to 20 parking spaces;

(g) For landfills and excavations in WAC 197-11-800(1)(b)(v), up to 500 cubic yards.

(2) Whenever the city establishes new exempt levels under this section, it shall send them to the Department of Ecology, Headquarters Office, Olympia, Washington, under WAC 197-11-800(1)(c). (Ord. 1628 § 1 (Exh. A), 2009; Ord. 1385 (Exh. A), 2000)

16.36.080 Use of exemptions.

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

(2) In determining whether or not a proposal is exempt the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department’s consideration is exempt.

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

(a) The city shall not give authorization for:

(i) Any nonexempt action;

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

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

(iv) Any action that would occur, wholly or partially, within any designated critical area. (Ord. 1385 (Exh. A), 2000)

16.36.090 Environmental checklist.

(1) A completed environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not exempted in this chapter; except, a checklist is not needed if the city and applicant agree an EIS is required, the proposal is a planned action under RCW 43.21C.031 or SEPA compliance has otherwise been completed, or SEPA compliance has been initiated by another agency. The checklist shall be in the form of WAC 197-11-960.

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

(3) 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:

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

(b) The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 1385 (Exh. A), 2000)

16.36.093 Threshold determination.

In reviewing the environmental checklist, the responsible official shall apply the threshold determination criteria of WAC 197-11-330 and, if necessary, may initiate the additional information-gathering procedures of WAC 197-11-335. Upon completion of this process, the responsible official shall issue one of the following documents and proceed with requirements of the respective sections and subsections below: determination of nonsignificance (DNS), mitigated DNS, or determination of significance (DS). (Ord. 1385 (Exh. A), 2000)

16.36.095 Determination of nonsignificance (DNS).

(1) If the responsible official determines there will be no probable significant adverse environmental impacts from a proposal, a determination of nonsignificance (DNS) shall be prepared. The DNS shall be combined with the environmental checklist and other supporting documents to accompany the proposal through the normal review process.

(2) If the proposal for which any DNS is issued involves another agency with jurisdiction, demolition of any nonexempt structure, issuance of nonexempt clearing or grading permits, or a GMA action, the following requirements apply:

(a) The DNS, environmental checklist, and other supporting documents shall be sent for a 14-day review and comment period to agencies with jurisdiction, the Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal;

(b) Public notice of the DNS shall be given in accordance with WMC 16.36.130; and

(3) The responsible official shall reconsider the DNS based on comments received, and may retain, modify or withdraw the DNS under WAC 197-11-340(2)(f) and (3)(a). Any modified DNS shall be sent to agencies with jurisdiction, but does not require a new comment period. (Ord. 1385 (Exh. A), 2000)

16.36.100 Mitigated DNS.

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

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

(b) Precede the city’s actual threshold determination for which the department is lead agency.

(3) The responsible official should respond to the request for early notice within 15 working days. The response shall:

(a) Be written;

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

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

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

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

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

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

(c) The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific for example, proposals to “control noise” or “prevent 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.

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

(6) A mitigated DNS is issued under WMC 16.36.095(2) and WAC 197-11-340(2), requiring a 14-day comment period and public notice.

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

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

(9) The city’s written response under subsection (2) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to proposal, as opposed to a written request for early notice, shall not bind the city to consider the clarifications or changes in its threshold determination.

16.36.110 Optional DNS process.

(1) If the responsible official has a reasonable basis for determining significant adverse environmental impacts are unlikely for a private project, the city may use a single integrated comment period to obtain comments on the notice of application and the likely threshold determination for the proposal. When this process is used a second comment period for the DNS will typically not be required.

(2) Where the optional DNS process is used, the city shall:

(a) State on the first page of the notice of application that it expects to issue a DNS for the proposal, and that:

(i) The optional DNS process is being used,

(ii) This may be the only opportunity to comment on the environmental impacts of the proposal,

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

(iv) A copy of the subsequent threshold determination for the specific proposal may be obtained upon request;

(b) Identify in the notice of application the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected;

(d) Send the notice of application and environmental checklist to:

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

(ii) Anyone who requested a copy of the environmental checklist for the specific proposal.

(3) If the city indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application in accordance with WAC 197-11-948.

(4) The responsible official shall consider timely comments on the notice of application and either:

(a) Issue a DNS or mitigated DNS with no comment period using the procedures in subsection (5) of this section;

(b) Issue a DNS or mitigated DNS with a comment period using the procedures in subsection (5) of this section, if the city determines a comment period is necessary;

(d) Require additional information or studies prior to making a threshold determination.

(5) If a DNS or mitigated DNS is issued under subsection (4)(a) of this section, the city shall send a copy of the DNS or mitigated DNS to the Department of Ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated. (Ord. 1385 (Exh. A), 2000)

16.36.115 Determination of significance (DS).

(1) If the responsible official determines that a proposal may have a probable significant adverse environmental impact, a determination of significance (DS) shall be prepared. The DS document shall also serve as a scoping notice for identifying, and soliciting comments on, the issues to be discussed in the required environmental impact statement (EIS). If a determination of significance is made concurrently with any notice of application required pursuant to Chapter 18.84 WMC, the notice of application shall be combined with the DS/scoping notice.

(2) The responsible official shall circulate the DS/scoping notice to the applicant, the Department of Ecology, other agencies with jurisdiction and expertise, affected tribes, and the public. Notice shall be given under WMC 16.36.130. In the event a proposal is changed so as to result in a withdrawn determination of significance, a DNS shall be sent to all who commented in the DS/scoping notice; in such cases a new public notice and 14-day comment period shall be provided. (Ord. 1385 (Exh. A), 2000)

16.36.118 Scoping.

(1) An environmental impact statement (EIS) is required to analyze only those probable adverse environmental impacts that are significant (RCW 43.21C.031). The responsible official shall narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives, including mitigation measures.

(2) Scoping is required for the preparation of all new draft EISs, but is optional at the discretion of the responsible official for the preparation of a supplemental EIS or when adopting another environmental document for the EIS.

(3) As a minimum, the city shall invite agency and public comment on the scope of the EIS by circulating the DS/scoping notice in accordance with WMC 16.36.115(2). The scoping notice may stipulate that written comments are required, in which case agencies and the public shall be allowed 21 days from the date of issuance of the DS in which to respond. (Ord. 1385 (Exh. A), 2000)

16.36.120 Preparation of EIS – Additional considerations.

(1) Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEISs) is the responsibility of the department of community development 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.

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

(3) The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.) (Amended during 9/08 supplement; Ord. 1385 (Exh. A), 2000)

16.36.127 Availability of EIS.

(1) A draft EIS shall be distributed in accordance with WAC 197-11-455(1), and public notice that a DEIS is available shall be given under WMC 16.36.130. Any person or agency may submit written comments on the DEIS within 30 days of the date of issue, or within any extension to that comment period. The responsible official may grant an extension of up to 15 days to the comment period if a written request for an extension is received before the end of the original comment period.

(2) A final EIS is normally prepared by appending and responding to relevant comments received on the DEIS and/or by undertaking and documenting additional research prompted by pertinent comments. A FEIS should be issued within 60 days of the end of the DEIS comment period, and shall be completed within one year of that date unless the city and the applicant have otherwise agreed in writing to a longer period of time. The FEIS shall be sent to the Department of Ecology (two copies), to all agencies with jurisdiction, to all agencies submitting comments on the DEIS, and to anyone requesting a copy of the FEIS. The responsible official shall also send a notice of FEIS availability and cost to anyone who commented on the DEIS and to those who received but did not comment on the DEIS and to other parties of record. The city shall not act on a proposal for which an EIS has been required prior to seven days after issuance of the FEIS. (Ord. 1385 (Exh. A), 2000)

16.36.130 Public notice.

(1) 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:

(a) If public notice is required for a nonexempt license, a threshold determination shall not be issued until the expiration of the public comment period on the notice of application, except as follows:

(i) If the city has made a determination of significance concurrently with the notice of application, the DS/scoping notice shall be combined with the notice of application;

(ii) Nothing in this section prevents a DS/scoping notice from being issued prior to the notice of application; and

(iii) If the optional DNS process of WMC 16.36.110 is used, the notice of application may identify the likely threshold determination in order to provide for a single integrated comment period.

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

(i) Notifying the news media;

(ii) Posting notices in City Hall, library, and public safety building; and/or

(iii) Publishing notice in a newspaper of general circulation in the community.

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

(2) Whenever the city issues a draft EIS under WAC 197-455(5), or a supplemental EIS 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 at least one of the following methods;

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

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

(e) Notifying the news media; or

(f) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; or

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

(h) Posting notices in City Hall, library, and public safety building.

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

(4) The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense, specifically by publishing notice in a newspaper of general circulation in the community. (Ord. 1385 (Exh. A), 2000)

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

(1) The department of community development 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, or reviewing a draft EIS.

(2) This department shall be responsible for the city’s compliance with WAC 197-11-550, whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Amended during 9/08 supplement; Ord. 1385 (Exh. A), 2000)

16.36.150 Designation of responsible official.

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

(2) For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required EIS, and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules adopted by reference in WMC 16.36.020. (Ord. 1613 § 1 (Exh. A), 2008; Ord. 1385 (Exh. A), 2000)

16.36.160 Substantive authority.

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

(2) Subject to the limitations of RCW 43.21C.060 and 43.21C.240, the city may attach conditions to a permit or approval for a proposal so long as:

(a) Such conditions are necessary to mitigate specific probable significant adverse environmental impacts identified in environmental documents prepared pursuant to this chapter;

(b) Such conditions are in writing;

(d) The city 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) Subject to the limitations of RCW 43.21C.060 and 43.21C.240, the city may deny a permit or approval for a proposal on the basis of SEPA so long as:

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

(b) A finding is made that there are not reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

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

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

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

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

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

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

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

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

(vi) Achieve a balanced 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 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.

(c) The city adopts by reference the policies of the following codes: WMC Title 15, Buildings and Construction; WMC Title 16, Environmental Regulations; WMC Title 17, Land Divisions; WMC Title 18, Zoning; Comprehensive Plan of 1994, and any amendments thereto; and Vision Statement adopted January 19, 1999, by Resolution No. 705. (Ord. 1740 § 1 (Exh. A), 2013; Ord. 1385 (Exh. A), 2000)

16.36.170 Appeals.

The city establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

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

(a) A final DNS;

(b) A DS;

(d) A substantive SEPA decision. The substantive SEPA decision refers to the conditioning or denial of, or failure to condition or deny, a proposal under the authority of SEPA by a nonelected city official, city planning commission, or hearing examiner.

(2) Appeals under this section shall be processed as follows:

(a) Determination of Nonsignificance (DNS)/Final EIS/Substantive SEPA Decision.

(i) For proposals which may be approved by an administrative official without public hearing, SEPA appeals must be filed in writing in conjunction with, and within the limitation period applicable to, an available administrative appeal of the applicable permit or approval; provided, that if no administrative appeal of the underlying administrative permit or approval is otherwise provided for, an appeal under this section shall be made to the Washougal hearing examiner within 14 days of the issuance of the permit or approval. The decision of the hearing examiner shall be final and not subject to further administrative appeal.

(ii) For proposals which may only be recommended for approval following a public hearing by the planning commission, SEPA appeals shall be filed in writing with the city council within 14 days of issuance of said recommendation, which appeal shall be decided by the city council in conjunction with its decision on the underlying recommendation.

(iii) For proposals which the final decision is made by the hearing examiner following a public hearing, SEPA appeals shall be filed in writing with the hearing examiner within 14 days of issuance of determination, which appeal shall be decided by the hearing examiner in conjunction with the decision on the underlying project application.

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

(a) Findings and conclusions;

(b) Testimony under oath; and

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

(5) The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 1465 § 1, 2003; Ord. 1451 § 1, 2003; Ord. 1385 (Exh. A), 2000)

16.36.173 Notice – Statute of limitations.

(1) The city, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

(2) The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1385 (Exh. A), 2000)

16.36.190 Critical areas.

(1) The city designates the following as critical areas, in which exemptions as specified in WMC 16.36.195 do not apply:

(a) Shorelines of the city, as defined by Chapter 90.58 RCW and as designated by Chapter 173-22 WAC;

(b) Floodplains, as defined by federal insurance rate maps;

(c) Wellhead protection areas, to include property within 1,000 feet of a publicly owned wellhead used for municipal water supply;

(d) Wetlands, as defined by WMC 16.04.015;

(e) Geologically hazardous areas, as defined by WMC 16.04.015; and

(f) Fish and wildlife habitat conservation areas, as listed in WMC 16.04.055.

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

(3) 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. 1849 § 1 (Exh. A), 2018; Ord. 1385 (Exh. A), 2000)

16.36.195 Nonexempt actions in critical areas.

(1) Under the provisions of WAC 197-11-908, the city selects the following categorical exemptions to be inapplicable within the critical areas designated under WMC 16.36.190:

(a) The minor new construction exemptions of WAC 197-11-800(1), as established under the flexible threshold criteria of WMC 16.36.070.

(b) Other minor new construction exemptions under WAC 197-11-800(2), as follows:

(i) The construction and/or installation of commercial on-premises signs, and public signs and signals;

(ii) Grading, excavating, filling, septic tank installation and landscaping for exempted facilities;

(iii) Additions, modifications or replacement of exempted buildings or facilities;

(iv) Installation of underground storage tanks having a capacity of 10,000 gallons or less;

(v) The vacation of streets or roads.

(d) Licenses to operate or engage in amusement devices and rides and entertainment activities under WAC 197-11-800(14)(c).

(e) The installation, construction, relocation or replacement of the utilities under WAC 197-11-800(24), as follows:

(i) All communication lines, including cable TV;

(ii) All storm water, water and sewer facilities, lines or appurtenances related to lines of eight inches or less in diameter;

(iii) All electric facilities, lines or appurtenances with an associated voltage of 55,000 volts or less, and the overbuilding of distribution lines with transmission lines;

(iv) All natural gas distribution lines and facilities.

(f) Development of recreational sites under WAC 197-11-800(25)(h).

(2) The scope of environmental review of these actions within critical areas shall be limited to:

(a) Documenting whether the proposal is consistent with the requirements of the applicable critical area ordinance; and

(b) Evaluating potentially significant impacts on the critical area resources not adequately addressed by the Washougal Comprehensive Plan and implementing ordinances, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and other applicable environmental review laws. (Ord. 1385 (Exh. A), 2000)

16.36.200 Fees.

The city shall require the following fees for its activities in accordance with the provisions of this chapter.

(1) Threshold Determination. For every environmental checklist the city will review when it is lead agency, the city shall collect a fee identified in WMC 3.90.010 from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

(2) Environmental Impact Statement.

(a) When the city is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the city, the city may charge and collect a reasonable fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for 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 city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals. The city may require the applicant to post bond or otherwise ensure payment of such costs.

(c) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection (2)(a) or (b) of this subsection which remain after incurred costs are paid.

(3) 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.

(4) The city may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by Chapter 42.17 RCW. (Ord. 1385 (Exh. A), 2000)