Chapter 16.08 STATE ENVIRONMENTAL POLICY ACT (SEPA)

Whatcom County adopts this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the Washington Administrative Code (WAC), SEPA rules, WAC 197-11-904 as amended.

This chapter contains the Whatcom County SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. (Ord. 98-048 Exh. A; Ord. 84-122 Part 1).

Article II. General Requirements

16.08.020 Purpose of this article and adoption by reference.

This article contains the basic requirements that apply to the SEPA process. The county adopts the following sections of Chapter 197-11 WAC by reference:

WAC

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.

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

197-11-210 SEPA/GMA integration.

197-11-220 SEPA/GMA definitions.

197-11-228 Overall SEPA/GMA integration procedures.

197-11-230 Timing of an integrated SEPA/GMA 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 (MTCA) integration.

197-11-253 SEPA lead agency for MTCA actions.

197-11-256 Preliminary evaluation.

197-11-259 Determination of nonsignificance for MTCA remedial actions.

197-11-262 Determination of significance and EIS for MTCA remedial actions.

197-11-265 Early scoping for MTCA remedial actions.

197-11-268 MTCA interim actions.

(Ord. 98-048 Exh. A; Ord. 84-122 Part 2 (part)).

16.08.040 Designation of responsible official.

A. For those proposals for which the county is the lead agency, the responsible official shall be the director of planning and development services or his/her designee.

B. For all proposals for which the county 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 WCC 16.08.020.

C. The county shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW.

D. The responsible official shall preside at meetings of the environmental review committee (ERC) and maintain the county register of environmental consultants. (Ord. 98-048 Exh. A; Ord. 84-122 Part 2 (part)).

16.08.045 Designation of environmental review committee.

A. There is created an ERC composed of the following public officials or their designated representative: director of public works, director of planning and development services (chair), environmental health manager, director of county parks and recreation, and prosecuting attorney.

B. The committee shall have the responsibility to assist the responsible official, when consulted, in making threshold determinations, determining the scope of EISs, selecting consultants, preparing EISs, and similar functions as requested.

C. The committee shall also recommend to the county council amendments to this chapter when found necessary to adjust the fees, make corrections, or make additions in order to be current with Chapter 197-11 WAC.

D. The committee shall adopt such procedures as it deems necessary to carry out its functions and responsibilities.

E. Matters to be considered by the ERC may be initiated by any of its members or by any county department. (Ord. 98-048 Exh. A; Ord. 84-122 Part 2 (part)).

16.08.050 Lead agency determination and responsibilities.

A. The county, when receiving an application for or initiating a proposal that involves a nonexempt action, shall determine the lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the county is aware that another department or agency is in the process of determining the lead agency.

B. When the county is the lead agency for a proposal, the responsible official shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.

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

D. If the county 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 county 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 county may be initiated by the responsible official.

E. The responsible official is 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 lead agency determination for a private project shall include sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal or require permits or approvals. (Ord. 98-048 Exh. A; Ord. 84-122 Part 2 (part)).

16.08.055 Additional considerations in time limits applicable to the SEPA process.

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

A. Categorical Exemptions. The county shall identify whether an action is categorically exempt within seven days of receiving a completed application.

B. Threshold Determinations.

1. The county shall complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within 45 days of the date of a determination of completeness.

2. When the responsible official requires further information from the applicant or consultation with other agencies with jurisdiction, the responsible official shall wait no longer than 30 days for a consulted agency to respond and should complete the threshold determination within 15 days of receiving the requested information from the applicant or the consulted agency.

3. The county shall issue its threshold determination at least 15 days prior to an open record hearing. (Ord. 98-048 Exh. A; Ord. 96-031 § 2; Ord. 92-33 § 1; Ord. 84-122 Part 2 (part)).

16.08.058 Additional timing considerations.

A. For nonexempt proposals, the threshold determination or draft EIS for the proposal shall accompany the county’s staff recommendation to any appropriate advisory body, such as the planning commission.

B. If the county’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 county conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 98-048 Exh. A; Ord. 84-122 Part 2 (part)).

Article III. Categorical Exemptions and Threshold Determinations

16.08.065 Purpose of this article and adoption by reference.

This article contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an EIS to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. The county adopts the following sections by reference, as supplemented in this part:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination required.

197-11-315 Environmental checklist.

197-11-330 Threshold determination process.

197-11-335 Additional information.

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

197-11-350 Mitigated DNS.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning Ecology to change exemptions.

(Ord. 98-048 Exh. A; Ord. 84-122 Part 3 and Part 9 (part)).

16.08.070 Thresholds for categorical exemptions.

A. Whatcom County establishes the following categorically exempt levels for projects requiring county permits under WAC 197-11-800(1)(b):

1. For residential dwelling units in WAC 197-11-800(1)(c)(i): up to four dwelling units;

2. For agricultural structures in WAC 197-11-800(1)(c)(ii): up to 30,000 square feet;

3. For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(c)(iii): up to 12,000 square feet;

4. For the construction of a parking lot in WAC 197-11-800(1)(c)(iv): up to 40 parking spaces;

5. For landfill or excavations in WAC 197-11-800(1)(c)(v): up to 500 cubic yards;

6. Fish, wildlife and/or wetland enhancement activities; provided, that the project is approved by either the U.S. Department of Fish and Wildlife or the Washington State Department of Fish and Wildlife.

B. Whenever the county establishes new exempt levels under this section, it shall send them to the Department of Ecology, Headquarters Office, Olympia, Washington, 98504, under WAC 197-11-800(1)(c). (Ord. 98-048 Exh. A; Ord. 92-33 § 2; Ord. 84-122 Part 3 (part)).

16.08.080 Use of exemptions.

A. Each department within the county 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 county shall not require completion of an environmental checklist for an exempt proposal.

B. In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and 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 county may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

1. The county 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 modifications would serve no purpose if nonexempt action(s) were not approved; and

3. A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. (Ord. 98-048 Exh. A; Ord. 84-122 Part 3 (part)).

16.08.090 Environmental checklist.

A. A completed environmental checklist 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 county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. Except as provided in subsection D of this section, the checklist shall be on a form provided by the county, which is in the form of WAC 197-11-960 with additions required by the responsible official in accordance with WAC 197-11-906(4). The county shall use the environmental checklist to determine the lead agency and, if the county is the lead agency, for determining the responsible official and for making the threshold determination. A checklist submittal shall include any checklist review fee specified in the county’s uniform fee schedule.

B. For private proposals, the county will require the applicant to complete the environmental checklist, providing assistance as necessary. For county proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.

C. The county 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 county 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.

D. For proposals submitted as planned actions under WAC 197-11-164, the county shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. If a modified form is prepared, it must be sent to the Department of Ecology to allow at least a 30-day review prior to use.

E. Evaluation/Worksheet for Fossil and Renewable Fuel Facilities. Air and environmental health are elements of the environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in WAC 197-11-906(1)(c), Whatcom County hereby adds a procedure and criteria to help identify the affected environment, impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For any proposed expansion of facilities pursuant to and in accordance with WCC 20.68.153 or 20.68.154 or any new or expansions of a renewable fuel refinery or renewable fuel transshipment facility, the proponent will provide an expert evaluation or fill out the county’s SEPA “Worksheet for Fossil and Renewable Fuel Facilities.” This expert evaluation or worksheet provides detailed information required to evaluate impacts to air, land and water during review of a SEPA environmental checklist. The form of the worksheet shall be prepared and updated as needed by the SEPA responsible official in consultation with the planning commission and the county council. The expert evaluation or worksheet shall analyze the “significance” of direct, indirect, and cumulative impacts arising from:

1. Windborne transport of fossil or renewable fuel emissions across Whatcom County;

2. Lifecycle greenhouse gas emissions for the project’s incremental change for renewable facilities and fossil fuel facilities;

3. Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or interfere with commercial and treaty tribe fishing areas;

4. Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the shorelines, and to their headwaters; and

5. Potential for loss of life and/or property related to risks from spills or explosions associated with refining and transport of renewable or fossil fuels or related feedstocks within Whatcom County.

In determining whether possible impacts are “significant” and “probable,” the responsible official shall determine whether the information in the expert evaluation or the worksheet accurately analyzes the severity of potential harm, independently from analysis of probability of occurrence, in compliance with WAC 197-11-330. Also, as provided in WAC 197-11-794, “the severity of an impact should be weighed along with the likelihood of its occurrence” and “an impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred.”

The information provided in the expert evaluation or worksheet required for fossil and renewable fuel facilities shall be considered procedures and criteria added to Whatcom County’s SEPA policies and procedures pursuant to WAC 197-11-906(1)(c) and are deemed necessary to be consistent with the provisions of SEPA contained in RCW 43.21C.020, 43.21C.030 and 43.21C.031. However, the expert evaluation or worksheet may not be required if an environmental impact statement is prepared. (Ord. 2021-046 § 2 (Exh. B); Ord. 2020-045 § 1 Exh. A; Ord. 98-048 Exh. A; Ord. 84-122 Part 3 (part)).

16.08.100 Mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

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 county is lead agency; and

2. Precede the county’s actual threshold determination for the proposal.

C. The responsible official should respond to the request for early notice within 10 working days. The response shall:

1. Be written;

2. State whether the county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the county 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 county 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 county 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:

1. If the county 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 county shall issue and circulate a DNS under WAC 197-11-340(2).

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

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

4. Mitigation measures which justify issuance of an MDNS may be incorporated in the threshold determination by reference to agency staff reports, studies or other documents.

F. An MDNS is issued under either WAC 197-11-340(2), requiring a 14-day comment period and public notice, or WAC 197-11-355(5), which may require no additional comment period beyond the comment period on the notice of application.

G. Mitigation measures incorporated in the MDNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the county.

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

I. The county’s written response under subsection C of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the county to consider the clarifications or changes in its threshold determination. (Ord. 98-048 Exh. A; Ord. 84-122 Part 3 (part)).

Article IV. Environmental Impact Statement (EIS)

16.08.110 Purpose of this article and adoption by reference.

This article contains the rules for preparing environmental impact statements. The county adopts the following sections by reference, as supplemented by this article:

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping (Optional).

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

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

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 98-048 Exh. A; Ord. 84-122 Part 4 (part)).

16.08.120 Preparation of EIS – Additional considerations.

A. Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of planning and development services under the direction of the responsible official. Before the county 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 county staff, the applicant, or by a consultant selected consistent with WCC 16.08.200.B.2. If the responsible official requires an EIS for a proposal and determines that someone other than the county 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 county’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

C. The county may require an applicant to provide information the county 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 county may request under another ordinance or statute.

D. The SEPA responsible official shall administer and have signatory authority for all EIS bank accounts. (Ord. 98-048 Exh. A; Ord. 84-122 Part 4 (part)).

Article V. Commenting

16.08.128 Adoption by reference.

This article contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The county adopts the following 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 comments.

197-11-560 FEIS response to comment.

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

(Ord. 98-048 Exh. A; Ord. 84-122 Part 5 (part)).

16.08.130 Public notice.

A. Whenever possible, the county shall integrate the public notice required under this section with existing notice procedures for the county’s nonexempt permit(s) or approval(s) required for the proposal. Whenever Whatcom County issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the county shall give a public notice as follows:

1. If a SEPA document is issued concurrently with the notice of application, the public notice requirements for the notice of application will suffice to meet the SEPA public notice requirements.

2. If no public notice is required for the permit or approval, the county shall give notice of the DNS or DS by:

a. Posting the property, for site-specific proposals; or

b. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located; or

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

d. Notifying the news media.

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

B. If a DNS is issued using the optional DNS process, the public notice requirements for the notice of application as supplemented by the requirements in WAC 197-11-355 will suffice to meet SEPA public notice requirements.

C. Whenever the county 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. Posting the property, for site-specific proposals; or

3. Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located; or

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

5. Notifying the news media.

D. The county may integrate the public notice required under this section with existing notice procedures for the county’s nonexempt permit(s) or approval(s) required for the proposal.

E. The county may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 98-048 Exh. A; Ord. 84-122 Part 5 (part)).

16.08.140 Designation of official to perform consulted agency responsibilities for the county.

A. The director of planning and development services or his/her designee shall be responsible for preparation of written comments for the county in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

B. This person shall be responsible for the county’s compliance with WAC 197-11-550 whenever the county 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 county. (Ord. 98-048 Exh. A; Ord. 84-122 Part 5 (part)).

Article VI. Using Existing
Environmental Documents

16.08.150 Purpose of this article and adoption by reference.

This article contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the county’s own environmental compliance. The county adopts the following sections by reference:

WAC

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

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

197-11-172 Planned actions – Project review.

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

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement – Procedures.

197-11-625 Addenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference –Procedures.

197-11-640 Combining documents.

(Ord. 98-048 Exh. A; Ord. 84-122 Part 6).

Article VII. SEPA and Agency Decisions

16.08.155 Purpose of this article and adoption by reference.

This article contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This article also contains procedures for appealing SEPA determinations to agencies or the courts. The county 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. 98-048 Exh. A; Ord. 84-122 Part 7 (part)).

16.08.157 Denial without environmental impact statement (EIS).

A. When there are grounds independent of SEPA that merit denial of a proposal that is undergoing preparation of a SEPA environmental impact statement (EIS), whether ongoing or postponed by the applicant, the county shall deny the application(s) related to the proposal, following receipt of a recommendation of denial from the responsible official, if the following requirements are met:

1. The proposal is one for which the responsible official has issued a determination of significance or an early notice of the likelihood of a determination of significance, as defined in WCC 16.08.175; and

2. Continued preparation or completion of the EIS is no longer justified because either:

a. The applicant has applied for a rezone for which there is a direct conflict with an express limitation adopted in a county plan, policy or regulation, which conflict could not be mitigated through measures identified in an EIS; or

b. Prior to completion of the EIS, the applicant has received a denial of a necessary permit or other authorization by another federal, state or local agency with jurisdiction on grounds independent of SEPA, without which the project cannot go forward.

B. Any denial or recommendation of denial shall be supported by express written findings or conclusions in conformance with subsection A of this section.

C. Procedure. The following is applicable to any project proposal for which an EIS has been required:

1. When the responsible official determines that the requirements of subsection A of this section are met, within 30 days he or she shall issue a recommendation of denial and set a hearing before the hearing examiner pursuant to Chapter 22.05 WCC. The recommendation shall provide proposed written findings and conclusions to the hearing examiner demonstrating how the provisions of subsection A of this section are met.

2. The examiner shall hold an open record hearing pursuant to Chapter 22.05 WCC and issue a decision, with findings and conclusions, on whether an order of denial should be entered pursuant to this section.

3. The decision of the hearing examiner shall be a final decision appealable to the county council pursuant to WCC 22.05.160(2).

D. SEPA Compliance. Any denial under this section does not constitute a separate action requiring a new threshold determination. (Ord. 2017-005 Exh. A).

16.08.160 Substantive authority.

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

B. The county may attach conditions to a permit or approval for a proposal so long as:

1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

2. Such conditions are in writing; and

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

4. The county has considered whether other local, state, or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

5. Such conditions are based on one or more policies or provisions in subsection D, E or F of this section and cited in the license or other decision document.

C. The county may deny a permit or approval for a proposal on the basis of SEPA so long as:

1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a 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 or provisions identified in subsection D or F of this section and identified in writing in the decision document.

D. The county designates and adopts by reference the following policies as the basis for the county’s exercise of SEPA authority pursuant to this section:

1. The county 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 county 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.

3. The county adopts by reference the policies in the following county documents:

Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components)

Whatcom County Shoreline Management Program

Whatcom County Subdivision Ordinance

Whatcom County Solid Waste Management Plan

Whatcom County Critical Areas Ordinance

All official land use controls adopted by Whatcom County.

E. Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed by these SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific adverse environmental impact has been adequately addressed by an existing rule or law of another agency with jurisdiction, the county shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the county shall base or condition its project approval on compliance with these other existing rules or laws. The county shall not so defer if such regulations did not anticipate or are otherwise inadequate to address a particular impact of a project or would be less restrictive than county code.

F. Specific Environmental Policies.

1. Air Quality and Climate.

a. Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality of life. Mitigation of air pollutant impacts will normally be the subject of air permits required by the Northwest Clean Air Agency (NWCAA) and/or State Department of Ecology (DOE) and no further mitigation by the county shall be required. However, where a project being reviewed by the county generates public nuisance impacts, odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, the county may require mitigation under SEPA.

b. Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads, dikes and critical infrastructure such as water and waste treatment facilities. While climate change is a global phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be authorized by the county address greenhouse gas emissions impacts.

i. Greenhouse Gas Emissions. The following shall apply to projects that: (1) are expansions of fossil fuel refineries and fossil fuel transshipment facilities, as defined in WCC 20.68.153 and 20.68.154, or new, or expansion of renewable fuel refineries and renewable fuel transshipment facilities; and (2) will have reasonably foreseeable, probable, direct greenhouse gas emissions resulting from new or modified equipment of greater than 10,000 MT/year (CO2e) as determined by the Northwest Clean Air Agency using methodology consistent with 40 CFR § 98.253, Calculating GHG Emissions (for Petroleum Refineries), and 40 CFR § 98.33, Calculating GHG Emissions (for Stationary Fuel Combustion Sources), as applicable.

(A) Emissions Assessed. The SEPA responsible official shall require assessment of the lifecycle greenhouse gas emissions of the project, with a focus on the reasonably foreseeable, probable, direct and indirect, gross greenhouse gas emissions caused by the project, consistent with WAC 197-11-060(4)(d). The assessment shall estimate the incremental gross direct emissions change from a baseline established in current prevention of significant deterioration and/or minor new source review permit technical support documents.

(B) Impact Assessment. Greenhouse gas emissions impacts shall be assessed using current scientifically valid modeling techniques, accounting for project emissions and gross increases of existing direct emissions resulting from the proposed expansion project. The range of greenhouse gas emissions impacts assessed may be greater than the range of greenhouse gas emissions impacts for which mitigation is required.

(C) Mitigation. The county decision maker shall require the applicant to identify options for mitigation of greenhouse gas emissions that are caused by the project pursuant to WAC 197-11-660 and subsection (B) of this section, and in accordance with the following considerations:

(1) Mitigation measures must be imposed on the permittee as provided in WAC 197-11-660(1)(d). The county decision maker must require mitigation to address the project’s direct greenhouse gas emissions and may require mitigation to address the project’s indirect emissions. Voluntary additional mitigation may occur, per WAC 197-11-660(1)(d). Mitigation shall not be required for projects shown in SEPA assessment to reduce greenhouse gas emissions of existing facilities on a lifecycle basis.

(2) The SEPA responsible official shall not require duplicative mitigation of greenhouse gas emissions (MT CO2e) that are reasonably foreseeable, probable, and caused by the project to the extent these emissions or a portion of these emissions are otherwise mitigated under other local, state, or federal laws, rules, or permits.

(3) Mitigation may be achieved through on-site mitigation measures, such as efficiency improvements and reduced generation, and through local and regional projects, so long as such measures or projects are reasonable, capable of being accomplished, are likely to protect or enhance environmental quality, and meet current state rules and standards. Alternatively, mitigation may be achieved through (a) projects located outside of the local area/region, or (b) through purchase of carbon offsets from any carbon registry approved by the planning department, NWCAA, or any Washington state agency, subject to the provisions of subsection (F)(1)(b)(i)(C)(6) of this section. Mitigations for the project being permitted may concurrently satisfy any other requirements imposed by county, state or federal governments for the same project.

(4) When considering the total mitigation required, a multiplier of 1.5 shall be applied to the tonnage of all mitigations performed locally (including those selected from the current Whatcom County Climate Action Plan) after August 8, 2021, as a means to encourage local investment. This multiplier shall not apply to emission reduction units generated by and purchased from local third-party projects or activities that were implemented prior to August 8, 2021.

(5) Applicants are encouraged, but not required, to select mitigation proposals from the Whatcom County Climate Action Plan and to select projects that yield energy efficiency gains, local economic benefits such as creation of jobs with living wage or use of prevailing wages, and/or local economic development.

(6) Mitigations based on emissions reductions from activities or programs must be: (a) real, specific, identifiable, and quantifiable; (b) permanent; (c) enforceable; (d) verifiable; and (e) except as allowed by subsection (F)(1)(b)(i)(C)(3) of this section, additional to reductions required under other laws, rules, or permits for unrelated projects or expansions.

(7) The county decision maker may not deny a permit based upon lack of availability of local or regional mitigation.

(D) Should a Washington state greenhouse gas assessment and mitigation permitting or project requirement be adopted, such as a rule adopted pursuant to the Washington Governor’s Directive 19-18, Environmental Assessment of Greenhouse Gas Emissions, subsection (F)(1)(b)(i) of this section shall no longer apply as of the effective date of the requirement or rule. Should a new federal greenhouse gas assessment and mitigation permitting or project requirement with the same force and effect of subsection (F)(1)(b)(i) of this section be adopted, subsection (F)(1)(b)(i) of this section shall no longer apply as of the effective date of the requirement or rule.

ii. Greenhouse Gas Emissions – Other Uses Within the Heavy Impact Industrial District.

(A) Method of Analysis. Determined by SEPA responsible official following consultation with federal and state agencies with jurisdiction or expertise.

(B) Mitigation. Determined by SEPA Responsible Official. See subsection (F)(1)(c) of this section.

c. It is the county’s policy to minimize or prevent adverse air quality impacts. Federal, state, regional, and county regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts. If the decision maker makes a written finding that the applicable federal, state, regional, and/or county regulations did not anticipate or are inadequate to address the particular impact(s) of the project, the decision maker may condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deny a project under the provisions of the State Environmental Policy Act.

2. Plants and Animals.

a. Many species of birds, mammals, fish, and other classes of animals and plants live in both rural and urban environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of ecological, educational, and economic value include priority habitats and species as listed in the Washington Department of Fish and Wildlife’s Priority Habitats and Species, as amended, consistent with WCC 16.16.710, and High Biodiversity Value Areas per the Whatcom County 2017 Ecosystem Report, as amended.

b. It is the county’s policy to minimize or prevent the loss of fish and wildlife habitat that has substantial ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be given to anadromous fisheries and marine mammals.

c. The decision maker may condition or deny the project to mitigate its specific adverse environmental impacts if the decision maker finds that a proposed project would reduce or damage rare, uncommon, unique or exceptional plant or wildlife habitat, designated wildlife corridors, or habitat diversity for plants or animals species of substantial educational, ecological, or economic value, or interfere with treaty rights, clean water rights, or endangered species protection. (Ord. 2021-046 § 2 (Exh. B); Ord. 98-048 Exh. A; Ord. 92-33 § 3; Ord. 84-122 Part 7 (part)).

16.08.165 Appeals of administrative decisions based on the substantive authority of SEPA.

Except for permits and variances issued pursuant to the shoreline management program of the county, when any proposal or action not requiring a decision of the county council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the county council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within 10 days of the decision being appealed. Review by the county council shall be on a de novo basis. (Ord. 98-048 Exh. A).

16.08.170 Appeals.

A. Whatcom County establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

1. Any agency or aggrieved party may appeal the county’s procedural compliance with Chapter 197-11 WAC for issuance of the following by filing with the county department of planning and development services (see WCC 16.08.200.A.2 for fee):

a. Appeal of the final DNS, following the comment period when applicable, must be made to the hearing examiner within 10 days of the date the DNS is final (see WAC 197-11-390(2)(a));

b. Appeal of a DS must be made to the hearing examiner within 10 days of the date the DS is issued.

2. For any appeal under this subsection, the county shall provide a record of review that shall consist of the following:

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript.

3. The procedural determination by the county’s responsible official shall carry substantial weight in any appeal proceeding.

4. The hearing examiner shall reverse the threshold determination of the responsible official if the determination is found to be clearly erroneous. A determination is clearly erroneous when, although there is evidence to support it, the hearing examiner, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.

B. The county 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. 98-048 Exh. A; Ord. 84-122 Part 7 (part)).

16.08.173 Notice/statute of limitations.

A. The county, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the responsible official, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 98-048 Exh. A; Ord. 84-122 Part 7 (part)).

Article VIII. Definitions

16.08.175 Purpose of this article and adoption by reference.

This article contains uniform usage and definitions of terms under SEPA. The county adopts the following sections by reference, 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.

197-11-721 Closed record appeal.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city.

197-11-730 Decision maker.

197-11-732 Department.

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

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

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-775 Open record hearing.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable alternative.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

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

A. “Direct emissions” means greenhouse gas emissions associated with fossil fuel refineries, fossil fuel transshipment facilities, renewable fuel refineries, or renewable fuel transshipment facilities based upon the refining and processing of fossil fuels located within the Cherry Point Heavy Industrial area.

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

C. “ERC” means environmental review committee established in WCC 16.08.045.

D. “Greenhouse gas emissions” means gases that trap heat in the atmosphere. “Greenhouse gas,” “greenhouse gases,” “GHG,” and “GHGs” include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, and any other gas or gases designated by the federal Clean Air Act (United States Code Title 42, Chapter 85), state Clean Air Act (Chapter 70A.15 RCW) or state limiting greenhouse gas emissions law (Chapter 70A.45 RCW) or any directly superseding provisions of state or federal law.

E. “Gross emissions” means the actual incremental emissions increases or decreases resulting from the project. Gross emissions do not include reductions or additions from off-site mitigation or lifecycle impacts.

F. “Indirect emissions” means emissions resulting from off-site generation of power purchased for consumption at the facility and emissions from other contiguous or adjacent utilities directly supplying the facility (examples include cogeneration of steam, off-site hydrogen production).

G. “Lifecycle greenhouse gas emissions” means the aggregate quantity of greenhouse gas emissions (including direct emissions and significant indirect emissions), related to the full fuel lifecycle, including all stages of fuel and feedstock production and distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming potential.

H. “Ordinance” means the procedure used by the county to adopt regulatory requirements.

I. “Responsible official” shall mean the director of the department which bears responsibilities for the SEPA process or his/her designee.

J. “SEPA rules” means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 2021-046 § 2 (Exh. B); Ord. 98-048 Exh. A; Ord. 84-122 Part 8).

Article IX. Agency Compliance

16.08.185 Purpose of this article and adoption by reference.

This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating categorical exemptions that do not apply within critical areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The county adopts the following sections by reference, as supplemented by WCC 16.08.050:

WAC

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 county/city.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/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 Ecology resolution of lead agency disputes.

197-11-948 Assumption of lead agency status.

(Ord. 98-048 Exh. A; Ord. 84-122 Part 10 (part)).

16.08.200 Fees.

The county shall require the following fees for its activities in accordance with the provisions of this chapter and the Whatcom County unified fee schedule (WCUFS), as adjusted:

A. Threshold Determination.

1. For every environmental checklist the county will review when it is lead agency, the county shall collect a fee from the proponent of the proposal (county proposals excepted). Prior to undertaking the threshold determination, a small project fee shall be collected in accordance with the WCUFS for checklists on permits for clearing, fill and grade, lot consolidation, commercial construction up to $500,000 and shoreline substantial development and conditional use; a large project fee shall be collected in accordance with the WCUFS for binding site plans, long subdivisions, public utility districts and commercial construction exceeding $500,000. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee. (When the county completes the environmental checklist at the applicant’s request or under WCC 16.08.090.C, an additional fee in accordance with the WCUFS shall be collected.)

2. A filing fee shall be collected in accordance with the WCUFS for appeals under WCC 16.08.170. The fee shall not apply to county departments.

B. Environmental Impact Statement.

1. For the administration of every EIS, the county shall collect a fee in accordance with the WCUFS from the proponent of the proposal.

2. When the county 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 county, the county may charge and collect reasonable fee from any applicant to cover costs incurred by the county in preparing the EIS. The responsible official shall advise the applicant of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

3. The responsible official may determine that the county 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 county and may bill such costs and expenses directly to the applicant. The county may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the county and applicant; provided, if agreement cannot be reached the applicant shall select a consultant from a list of no less than three qualified consultants supplied by the county.

4. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsections B.1 and 2 of this subsection which remain after incurred costs are paid.

C. The county 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.

D. The county shall not collect a fee for performing its duties as a consulted agency.

E. The county 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. 98-048 Exh. A; Ord. 93-080 Exh. T; Ord. 84-122 Part 10 (part)).

16.08.205 Effective date.

The effective date of this chapter is October 1, 1984. (Ord. 98-048 Exh. A; Ord. 84-122 Part 10 (part)).

16.08.220 Severability.

If any provision of this chapter or its application to any person or circumstances is held invalid, the remainder of this chapter, or the application of the provision to other person or circumstances, shall not be affected. (Ord. 98-048 Exh. A; Ord. 84-122 Part 10 (part)).

Article X. Forms

16.08.230 Adoption by reference.

The county adopts the following forms and sections by reference:

WAC

197-11-960 SEPA 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. 98-048 Exh. A; Ord. 84-122 Part 11).

Legislative history: Ord. dated 5/30/78; Ord. 79-63.