Chapter 16.10
THRESHOLD DETERMINATIONS
Sections:
16.10.010 Threshold determination required.
16.10.040 Determination of nonsignificance.
16.10.050 Determination of significance.
16.10.060 Effect of threshold determination.
16.10.010 Threshold determination required.
A threshold determination is required for any proposal which meets the definition of “action” and is not exempt under Chapter 16.08 BLMC; provided, that:
A. A new threshold determination is not required when the city is acting on a proposal for which a threshold determination has already been issued subject to the limitations and requirements of Chapter 16.14 BLMC.
B. A threshold determination is not required for a proposal subject to an adopted planned action ordinance identified in Chapter 16.16 BLMC. (Ord. 1701 § 8, 2023).
16.10.020 Process.
A. Prior to issuing a threshold determination the SEPA official shall determine if the optional DNS process can be utilized as provided for in BLMC 16.06.030.
B. Appropriate consideration of environmental information shall be completed before the city commits to a particular course of action.
C. In making a threshold determination, the SEPA official shall:
1. Independently evaluate the applicant’s responses to the questions on the SEPA checklist and indicating the result of its evaluation in the DS, in the DNS, or on the checklist; and
2. Conduct its initial review of the environmental checklist and any supporting documents without requiring additional information from the applicant.
3. Determine if the proposal is likely to have a probable significant adverse environmental impact, based on the proposed action, the information in the checklist, and any additional information furnished under subsection F of this section.
4. Consider mitigation measures which an agency or the applicant will implement as part of the proposal, including any mitigation measures required by development regulations, comprehensive plans, or other existing environmental rules or laws.
5. Determine if all or part of the proposal, alternatives, or impacts have been analyzed in a previously prepared environmental document, which can be adopted or incorporated by reference as provided in Chapter 16.14 BLMC.
6. Determine whether environmental analysis would be more useful or appropriate in the future in which case, the agency shall commit to timely, subsequent environmental review, consistent with WAC 197-11-055 through 197-11-070 and Chapter 16.14 BLMC.
D. In determining if a proposal has probable significant adverse environmental impacts, the SEPA official shall consider that:
1. The same proposal may have a significant adverse impact in one location but not in another location; and
2. The absolute quantitative effects of a proposal are also important, and may result in a significant adverse impact regardless of the nature of the existing environment; and
3. Several marginal impacts when considered together may result in a significant adverse impact; and
4. For some proposals, it may be impossible to forecast the environmental impacts with precision, often because some variables cannot be predicted, or values cannot be quantified.
5. A proposal may be significant to a degree if the proposal:
i. Adversely affects environmentally sensitive or special areas, such as loss or destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild and scenic rivers, or wilderness; and/or
ii. Adversely affects endangered or threatened species or their habitat; and/or
iii. Conflicts with local, state, or federal laws or requirements for the protection of the environment; and/or
iv. Establishes a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety.
E. In determining if a proposal has probable significant adverse environmental impacts, the SEPA official shall also determine if the requirements for environmental analysis, protection, and mitigation measures in the city’s development regulations and comprehensive plan adopted under Chapter 36.70A RCW, and in other applicable local, state, or federal laws or rules, provide adequate analysis of and mitigation for some or all of the specific adverse environmental impacts of the project as authorized by WAC 197-11-158(1). In making this determination the SEPA official shall comply with the provisions of WAC 197-11-158(2) through (6).
F. If the city needs additional information to render a threshold determination, the city shall comply with WAC 197-11-080 and 197-11-335, which are adopted by reference.
G. If, after complying with the requirements of this section, the city reasonably believes that a proposal may have a significant adverse impact, an EIS is required, and the city shall issue a determination of significance consistent with BLMC 16.10.050.
H. A threshold determination shall not balance whether the beneficial aspects of a proposal outweigh its adverse impacts, but rather, shall consider whether a proposal has any probable significant adverse environmental impacts under the rules stated in this section. For example, proposals designed to improve the environment, such as sewage treatment plants or pollution control requirements, may also have significant adverse environmental impacts. (Ord. 1701 § 8, 2023).
16.10.030 Timing.
A. The city shall prepare its threshold determination and environmental impact statement (EIS), if required, at the earliest possible point in the planning and decision-making process, when the principal features of a proposal and its environmental impacts can be reasonably identified, but no later than the submittal of the associated permit application(s) for a proposal. In determining when a proposal exists the city shall be guided by WAC 197-11-055(2)(a), which is adopted by reference.
B. The city shall allow an applicant to submit for review under SEPA and issue threshold determination prior to submitting other permit applications required for a proposal; subject to the limitations in BLMC 16.10.020(C).
C. The city may allow applicants to request a phased environmental review as authorized by WAC 197-11-055(5), which is adopted by reference.
D. If a DS is made concurrent with the notice of application, the DS and scoping notice shall be combined with the notice of application. Nothing in this subsection prevents the DS/scoping notice from being issued before the notice of application. If sufficient information is not available to make a threshold determination when the notice of application is issued, the DS may be issued later in the review process.
E. Nothing in this section prevents a lead agency, when it is a project proponent or is funding a project, from conducting its review under SEPA or from allowing appeals of procedural determinations prior to submitting a project permit application.
F. For proposals that require a public hearing as established in BLMC 14.30.020, the threshold determination shall be issued at least 14 days before the public hearing and provided to the planning commission or the decision maker at the public hearing. If an EIS or SEIS was required, the EIS or SEIS shall be provided to the planning commission or the decision maker at the public hearing. (Ord. 1701 § 8, 2023).
16.10.040 Determination of nonsignificance.
A. If, after following the process established in BLMC 16.10.020, the SEPA official determines that a proposal will not have probable significant adverse impacts, the SEPA official shall issue a determination of nonsignificance subject to the following procedures, which do not apply when the optional DNS method is utilized as provided for in BLMC 16.06.030:
1. The city will not act upon a proposal for 14 days after the date of issuance of a DNS if the proposal involves:
a. Another agency with jurisdiction.
b. Demolition of any structure or facility not exempted by BLMC 16.08.030(D)(4) or 16.08.050.
c. Issuance of clearing or grading permits not exempted in BLMC 16.08.030(D)(3).
d. A DNS issued under subsection B of this section or under BLMC 16.10.050(B).
e. A GMA action.
2. If, when issuing a DNS, the SEPA official determines that the requirements for environmental analysis, protection, and mitigation measures in the city’s development regulations and comprehensive plan, or in other applicable local, state, or federal laws or rules, provide adequate analysis of and mitigation for some or all of the specific adverse environmental impacts of the project as authorized in BLMC 16.10.020(E) and no conditions were required, the following statement shall be placed on the DNS:
The lead agency has determined that the requirements for environmental analysis, protection, and mitigation measures have been adequately addressed in the development regulations and comprehensive plan adopted under chapter 36.70A RCW, and in other applicable local, state, or federal laws or rules, as provided by RCW 43.21C.240 and WAC 197-11-158. Our agency will not require any additional mitigation measures under SEPA.
3. Notice of the DNS and environmental checklist shall be distributed as provided in BLMC 16.06.040 and comments shall be received for 14 days from the official date of issuance.
4. If comments are provided within 14 days from the official date of issuance, the SEPA official shall comply with the requirements of BLMC 16.06.060(A) and reconsider the DNS based on the comments.
5. After considering timely comments the SEPA official may retain or modify the DNS or, if the SEPA official determines that significant adverse impacts are likely, withdraw the DNS or supporting documents. When a DNS is modified, the city shall send the modified DNS to agencies with jurisdiction.
B. If, after following the process established in BLMC 16.10.020, the SEPA official determines that clarifications or changes to a proposal could be made or measures implemented to mitigate probable significant adverse impacts as authorized under BLMC 16.02.070, the SEPA official shall issue a mitigated determination of nonsignificance subject to the provisions of subsection A of this section and WAC 197-11-350.
C. Mitigation measures established under a mitigated determination of nonsignificance shall be subject to the enforcement provisions of Chapter 14.130 BLMC.
D. If a DNS or mitigated DNS is issued under the optional DNS method as provided for in BLMC 16.06.030, the city shall send a copy of the DNS or mitigated DNS to the DOE, agencies with jurisdiction, those who commented, and anyone requesting a copy.
E. The city shall withdraw a DNS if:
1. There are substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts.
2. There is significant new information indicating, or on, a proposal’s probable significant adverse environmental impacts; provided, that this shall not apply when a nonexempt license has been issued on a private project.
3. The DNS was procured by misrepresentation or lack of material disclosure; if such DNS resulted from the actions of an applicant, any subsequent environmental checklist on the proposal shall be prepared directly by the city or its consultant at the expense of the applicant.
F. If the city withdraws a DNS, the city shall make a new threshold determination and notify other agencies with jurisdiction of the withdrawal and new threshold determination. If a DS is issued, each agency with jurisdiction shall commence action to suspend, modify, or revoke any approvals until the necessary environmental review has occurred. (Ord. 1701 § 8, 2023).
16.10.050 Determination of significance.
A. If, after following the process established in BLMC 16.10.020, the SEPA official determines that a proposal will have probable significant adverse impacts, the SEPA official shall issue a determination of significance consistent with the requirements of WAC 197-11-360(1) through (3).
B. If, at any time after the issuance of a DS, a proposal is changed so, in the judgment of the SEPA official, there are no probable significant adverse environmental impacts, the DS shall be withdrawn, and a DNS issued instead. The DNS shall be sent to all who commented on the DS. A proposal shall not be considered changed until all license applications for the proposal are revised to conform to the changes or other binding commitments made by agencies or by applicants. (Ord. 1701 § 8, 2023).
16.10.060 Effect of threshold determination.
A. When the SEPA official makes a threshold determination, it is final and binding on all agencies, subject to the provisions of this section, BLMC 16.10.040 and 16.10.050.
B. The SEPA official’s threshold determination shall not be considered final until 14 days after official date of issuance and the public notice required under BLMC 16.06.040, except when the optional DNS method was utilized. For threshold determinations issued utilizing the optional DNS method, the determination shall be considered final on the official date of issuance.
C. The SEPA official’s threshold determination:
1. Shall not apply if another agency with jurisdiction assumes lead agency status under WAC 197-11-948.
2. Shall not apply when withdrawn by the SEPA official under BLMC 16.10.040(E).
3. Shall not apply when reversed on appeal.
D. Regardless of any appeals, a DS or DNS issued by the SEPA official shall be considered final for purposes of other agencies’ planning and decision making unless subsequently changed, reversed, or withdrawn. (Ord. 1701 § 8, 2023).