Chapter 15.28ENVIRONMENTAL POLICY

Sections:

Article I. 
General Provisions
15.28.010
Title.
15.28.020
Purpose.
15.28.030
Definitions – Adoption by reference.
15.28.040
Additional definitions.
15.28.050
General policies.
15.28.060
Specific policies.
15.28.065
Rules.
Article II. 
SEPA Process – General Requirements
15.28.070
Purpose – Adoption by reference.
15.28.080
Designation of responsible official.
15.28.090
Lead agency determination and responsibilities.
15.28.100
Timing of the SEPA process and integration of SEPA procedures with other governmental activities.
15.28.110
Additional considerations in applicable time limits.
Article III. 
Categorical Exemptions and Threshold Determinations
15.28.120
Purpose – Adoption by reference.
15.28.130
Flexible thresholds for categorical exemptions.
15.28.140
Use of categorical exemptions.
15.28.150
Environmental checklist.
15.28.160
Mitigated DNS.
Article IV. 
Environmental Impact Statement (EIS)
15.28.170
Adoption by reference.
15.28.180
Preparation of EIS – Additional considerations.
Article V. 
Commenting
15.28.190
Adoption by reference.
15.28.200
Public notice.
15.28.210
Designation of official to perform consulted agency responsibilities for the city.
Article VI. 
Using Existing Environmental Documents
15.28.220
Adoption by reference.
Article VII. 
SEPA and Agency Decisions
15.28.230
Adoption by reference.
15.28.240
Substantive authority.
15.28.245
Adoption of SEPA policies.
15.28.250
Appeals.
15.28.260
Notice – Statute of limitations.
Article VIII. 
Categorical Exemption
15.28.270
Adoption by reference.
Article IX. 
Agency Compliance
15.28.280
Adoption by reference.
15.28.290
Environmentally sensitive areas.
15.28.300
Fees.
Article X. 
Forms
15.28.310
Adoption by reference.
Article XI. 
Third Party Liability
15.28.320
Third party liability.
Article XII. 
Hearing Examiners for Review of SEPA Actions
15.28.365
Dismissal – Exhaustion.
15.28.400
Appeal of city’s decision.
Article I. General Provisions
15.28.010Title.

The ordinance codified in this chapter shall hereinafter be known as the “city environmental policy ordinance,” may be cited as such, and will hereinafter be referred to as “this chapter.”

(Ord. 1085 § 2 (part), 1999)

15.28.020Purpose.

The purpose of this chapter is to establish a clearly understood and effective set of policies and procedures for implementing the State Environmental Policy Act as set forth in RCW 43.21C, through the adoption of city environmental policies, and rules and procedures designed to take into consideration the environmental impact of actions taken by the city. The city adopts the ordinance codified in this chapter under the State Environmental Policy Act SEPA, RCW 43.21C.120, and the SEPA Rules, WAC 197-11-904.

(Ord. 1085 § 2 (part), 1999)

15.28.030Definitions – Adoption by reference.

This article contains uniform usage and definitions of terms under SEPA. The city adopts the following sections of WAC Chapter 197-11 by reference as supplemented by Section 15.28.040:

WAC

197-11-700 Definitions

197-11-702 Act

197-11-704 Action

197-11-706 Addendum

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 Decisionmaker

197-11-732 Department

197-11-734 Determination of Nonsignificance (DNS)

197-11-736 Determination of significance (DS)

197-11-738 EIS

197-11-740 Environment

197-11-742 Environmental checklist

197-11-744 Environmental document

197-11-746 Environmental review

197-11-748 Environmentally sensitive area

197-11-750 Expanded scoping

197-11-752 Impacts

197-11-754 Incorporation by reference

197-11-756 Lands covered by water

197-11-758 Lead agency

197-11-760 License

197-11-762 Local Agency

197-11-764 Major action

197-11-766 Mitigated DNS

197-11-768 Mitigation

197-11-770 Natural environment

197-11-772 NEPA

197-11-775 Open Record Hearing

197-11-776 Phased review

197-11-778 Preparation

197-11-780 Private project

197-11-782 Probable

197-11-784 Proposal

197-11-786 Reasonable alternative

197-11-788 Responsible Official

197-11-790 SEPA

197-11-792 Scope

197-11-793 Scoping

197-11-794 Significant

197-11-796 State agency

197-11-797 Threshold determination

197-11-799 Underlying governmental action

(Ord. 1085 § 2 (part), 1999)

15.28.040Additional definitions.

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

“City” means the City of Cle Elum.

“Days” means calendar days unless stated 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).

“Nondiscretionary project” means a project which does not involve an action which would grant the applicant any development rights which do not exist within zoning of the property at the time an application for development is submitted and includes, but is not limited to, grading permits and demolition permits.

“Nonexempt action” means any action which is not categorically exempt under Article III of this chapter or Part Nine of the SEPA rules.

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

“Responsible official” means the person designated by the mayor who shall carry out the duties and functions of the city when it is acting as the lead agency under this chapter. (See Section 15.28.080 for designation of responsible official.)

“SEPA rules” means WAC Chapter 197-11 adopted by the state of Washington Department of Ecology and as may be herein after amended.

(Ord. 1085 § 2 (part), 1999)

15.28.050General policies.

The city adopts by reference the general policies of the State Environmental Policy Act SEPA as set forth in RCW 43.21C.010 and RCW 43.21C.020 and as may be herein after amended.

(Ord. 1085 § 2 (part), 1999)

15.28.060Specific policies.

The city adopts the following specific policies in order to achieve the environmental goals of the Cle Elum community:

A. Policies Pertaining to the Natural Environment.

1. Earth.

a. To encourage land development practices that result in a minimal disturbance to the city’s vegetation and soils;

b. To encourage building and site planning practices that are consistent with the city’s natural topographical features;

c. To insure prompt development, restoration and effective erosion control of property after land clearing through the use of phased development, replanting, hydroseeding and other appropriate engineering techniques;

d. Prohibit development on steep slope areas when such development would create imminent danger of landslides.

2. Air.

a. To work in cooperation with the air pollution control agency having jurisdiction over the proposal, to secure and maintain such levels of air quality as will protect human health and safety and to the greatest degree practicable, prevent injury to plant and animal life and to property, foster the comfort and convenience of inhabitants, promote the economic and social development of the city, and facilitate the enjoyment of the natural attractions of the city.

3. Water.

a. To encourage development and construction procedures which conform to the Kittitas County Code as such may be amended or superseded, to minimize surface water and ground water runoff and diversion and to minimize erosion and reduce the risk of slides;

b. To encourage sound development guidelines and construction procedures which respect and preserve the city’s watercourses; to minimize water quality degradation and control the sedimentation of creeks, streams, ponds, lakes and other water bodies; to preserve and enhance the suitability of waters for contact recreation and fishing; to preserve and enhance the aesthetic quality of the waters;

c. To maintain and protect ground water resources, to minimize adverse effects of alterations in ground water quantities locations and flow patterns;

d. To provide a coordinated water supply plan with adjoining municipalities, special purpose districts, Kittitas County, private water purveyors, and land owners with water rights, provisions for interlocal agreements, joint/mutual assistance, and improvements to existing city facilities, and further joint public/private/regional water supply and treatment strategies and actions to comply with federal, state, and local water quality and drinking water standards.

4. Plants and Animals.

a. To protect the unique plants and animals within the city;

b. To preserve and enhance the city’s physical and aesthetic character by preventing indiscriminate removal or destruction of trees and ground cover on undeveloped and partially developed property;

c. To encourage the retention of trees and other vegetation for visual buffers and soil retention;

d. To encourage building and site planning practices that are consistent with the city’s vegetational features while at the same time recognizing that certain factors such as condition (e.g., disease, danger of falling, etc.), proximity to existing and proposed structures and improvements, interference with utility services, protection of scenic views, and the realization of a reasonable enjoyment of property may require the removal of certain trees and ground cover.

5. Energy and Natural Resources.

a. To encourage the wise use of nonrenewable natural resources;

b. To encourage efficient use of renewable resources;

c. To incorporate energy conservation features as feasible and practicable into all city projects and promote energy conservation throughout the community.

B. Policies Pertaining to the Built Environment.

1. Environmental Health.

a. To encourage development practices consistent with development standards of the city, Kittitas County and interlocal agreements as such may be amended or superseded. To minimize the exposure of citizens to the harmful physiological and psychological effects of excessive noise in a manner which promotes commerce; the use, value and enjoyment of property; sleep and repose: and the quality of the environment, including fish and wildlife functions, values, features and habitat;

b. To require proposals involving the potential risk of an explosion or the release of hazardous substances to the environment to include specific measures which will ensure the public health, safety and welfare;

c. To restrict or prohibit uses which will expose the public to unsanitary conditions or disease;

d. To restrict or prohibit uses which are dangerous to health, safety or property in times of flood or cause excessive increases in flood heights or velocities;

e. To require that uses vulnerable to floods, including public facilities which serve such uses, shall be protected against flood damage at the time of initial construction;

f. To meet the minimum requirements of the National Flood Insurance Program and State of Washington Flood Control Program.

2. Land and Shoreline Use.

a. Relationship to land use plans and estimated population:

i. To implement and further the city’s comprehensive plans as may hereafter be amended, including the land use plan, transportation plan, utilities plan, open space, parks and recreation plan, and other plans consistent with ongoing city facility plan or utility-related projects and places,

ii. To encourage orderly growth in undeveloped areas of the city by maximizing the efficiency of utilities and roads and other capital improvements;

b. Housing.

i. To encourage the provision and maintenance of adequate housing for the residents of Cle Elum, for all income levels,

ii. To evaluate impacts of new nonresidential development which would reduce existing housing stock or reduce land available for residential development;

c. Light and Glare.

i. To minimize excessive light and glare;

d. Aesthetics.

i. To encourage development which maintains and improves the existing aesthetic character of the community,

ii. To maximize protection of existing public scenic vistas and scenic corridors;

e. Recreation.

i. To protect the existing open space areas for future generations and promote their expansion;

f. Historic and Cultural Preservation.

i. To consider the historical and archaeological importance of all buildings and sites prior to any change in use or development, and to recognize properties and structures included in any future survey of historic buildings or as such may be amended or superseded, as properties of historical significance.

3. Transportation.

a. To approve street designs which are beneficial to the public in consideration of vehicular and pedestrian safety, efficiency of service, influence on the amenities and livability of the community, and economy of both construction and the use of land;

b. To encourage increased traffic volumes only in areas with sufficient capacity to provide safe and efficient traffic flow or where adequate traffic improvements will be provided in conjunction with the development. To require adequate vehicular and pedestrian access to new developments, and minimize pedestrian-vehicular conflict points.

4. Public Services and Utilities.

a. To encourage and approve development only where adequate public services, including fire and police protections are available or will be made available to serve the proposal;

b. To encourage and approve development only where adequate utilities, including water, sewer, power, communications and drainage facilities are available or will be made available in conjunction with the proposal following inclusion within the city’s growth area and after annexation into the city or the execution of a no-protest annexation plan that allows for municipal utility sewers for properties on-site the City of Cle Elum;

c. To protect the existing open space areas for future generations and promote their expansion.

C. Other Policies.

1. To minimize the reduction of available natural light due to the. casting of shadows by new development;

2. To encourage planned residential development to preserve and maintain sensitive environmental areas which could be negatively impacted by traditional development techniques;

3. A single development or land use, though otherwise consistent with zoning and other city policies, may create adverse impacts upon facilities and services, natural systems or the surrounding area when aggregated with the impacts of prior or other proposed development. It is the policy of the city to analyze such cumulative environmental impacts and condition or deny proposals to minimize or prevent adverse impacts in accordance with other provisions of this chapter;

4. In assessing the environmental impacts of a proposal and in determining the need for conditioning or denying a proposal in accordance with other provisions of this chapter, the responsible official shall utilize SEPA, all policies, guidelines and regulations adopted pursuant to SEPA, federal, state and regional environmental quality standards, and the legislative enactments of the city, both specific and general, now in effect or enacted in the future;

5. The city reserves the right to impose specific conditions upon any action or to deny action in conformance with the policies stated in this chapter, so as to mitigate or prevent adverse environmental impacts;

6. It is not the intent or purpose of this chapter to prevent or delay the reasonable development of land in the city;

7. It is the intent of the city to provide for adequate development standards and procedure for the Bull Frog Subarea following the adoption of an urban growth area which upon adoption are incorporated by reference in this chapter.

(Ord. 1085 § 2 (part), 1999)

15.28.065Rules.

The city is authorized to promulgate rules for the interpretation and implementation of this chapter through administrative rules adopted by the responsible official, and resolutions or ordinances adopted by the city council.

(Ord. 1085 § 2 (part), 1999)

Article II. SEPA Process – General Requirements
15.28.070Purpose – Adoption by reference.

This article contains general requirements that apply to the SEPA process, subject to the additional provisions contained in this article, the city adopts the following sections of WAC Chapter 197-111 by reference:

WAC

197-11-040 Definitions

197-11-050 Lead agency

197-11-055 Timing of the SEPA process

197-11-060 Content of environmental review

197-11-070 Limitations on action during SEPA process

197-11-080 Incomplete or unavailable information

197-11-090 Supporting documents

197-11-100 Information required of applicants

(Ord. 1085 § 2 (part), 1999)

15.28.080Designation of responsible official.

A. For those proposals for which the city is the lead agency, the responsible official shall be the city’s mayor or designated official.

B. 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 that were adopted by reference.

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

D. Public information on SEPA can be obtained at the lead agency through the Cle Elum city clerk’s office, Cle Elum City Hall, 301 Pennsylvania, Cle Elum, WA, 98922.

(Ord. 1085 § 2 (part), 1999)

15.28.090Lead agency determination and responsibilities.

A. When the city receives for or initiates a proposal that involves a nonexempt action, the responsible official shall determine the lead agency for that proposal under WAC 197-11-050 and WAC 197-11-922 through WAC 197-11-940. This determination shall be made for each proposal involving a nonexempt action unless the lead agency has been previously determined or the responsible official is aware that another agency is in the process of determining the lead agency.

B. When the city 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 draft and final EIS.

C. When the city is not the lead agency for a proposal, all departments of the city shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. The city shall not prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless the city determines it to be required under WAC 197-11-600. In some cases, the city may require or conduct supplemental environmental review under WAC 197-11-600.

D. If the city 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 fifteen days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fifteen-day time period. Any such petition on behalf of the city 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.

F. In making a lead agency determination for a private project, the responsible official shall identify which other agencies have jurisdiction over the proposal.

(Ord. 1085 § 2 (part), 1999)

15.28.100Timing of the SEPA process and integration of SEPA procedures with other governmental activities.

A. The primary purpose of the environmental review process is to provide environmental information to governmental decision makers to be considered prior to making their decision (and to provide for appropriate mitigation of environmental impacts in compliance with other sections of this chapter and the SEPA rules). The actual decision to proceed with many actions may involve a series of individual approvals or decisions. The threshold determination and the EIS, if required, should ideally be completed at the beginning of this process. The threshold determination and the EIS (if required) should be completed at the earliest point in the planning and decision making process, at which time, principal features of a proposal and its environmental impacts can be reasonably identified.

B. To the fullest extent possible, the procedures required by this chapter shall be integrated with existing planning and licensing procedures utilized by the city. These procedures should be initiated early, and undertaken in conjunction with other governmental operations to avoid lengthy time delays and unnecessary duplication of effort.

C. 1. A private applicant may, and is encouraged to, file a completed environmental checklist prior to the filing of an application for any covered license. The city shall provide for applicant review at the conceptual stage of a proposed action. An applicant shall submit a preliminary site plan in conjunction with a completed environmental checklist for SEPA review at the conceptual stage.

2. If the responsible official determines that the information initially supplied is not reasonably sufficient to evaluate the environmental impacts of the proposal, further information may be required of the applicant in conformance with WAC 197-11-100 and WAC 197-11-335.

3. The responsible official may set reasonable deadlines, not to exceed ninety days, for the submittal of information, studies or documents necessary for the threshold determination. Failure to meet such deadlines and fully comply shall cause the application to be deemed withdrawn. In which case, the responsible official shall either notify the applicant or return the plans or other data submitted to the city for review together with any unexpended portion of the application review fee. This provision shall also apply to SEPA applications submitted prior to the effective date of the ordinance codified in this chapter, amendment subject to the responsible official providing the applicant notice of pertinent deadlines.

D. At a minimum, any DNS or MDNS shall be completed prior to the city making any decision irreversibly committing itself to adopt, approve or otherwise undertake any proposed nonexempt action.

E. For nonexempt proposals, the final DNS, MDNS or final EIS for the proposal shall accompany the city’s final staff recommendation to any appropriate advisory body, such as the planning commission; provided; however, that preliminary discussions, public workshops or preliminary hearings before the advisory body may occur prior to the final SEPA determinations.

F. When the city is the proponent for either a governmental action of a project nature or a governmental action of a nonproject nature, and the city is also the lead agency, then the maximum time limits contained in this chapter for the threshold determination and EIS process shall not apply to the proposal.

(Ord. 1085 § 2 (part), 1999)

15.28.110Additional considerations in applicable time limits.

The responsible official shall make the following determinations as part of the initial review of every nonexempt project or proposal:

A. Categorical Exemptions. A determination whether the project or proposal is categorically exempt shall be made by the responsible official within fifteen days of receiving a request for such a determination from a private applicant or another governmental agency.

B. Threshold Determinations. The city’s SEPA process is an integrated permit and land use process. Nevertheless, the time to complete a threshold determination shall not exceed ninety days from the date of submittal of a completed application and supporting documentation and payment of fees; provided, however, additional time to complete a threshold determination may be required whenever:

1. A threshold determination requires further information from the applicant and/or consultation with other agencies with jurisdiction, as determined by the responsible official, in which case the running of the ninety-day period shall be stayed until the required information and/or consultation is provided;

2. A threshold determination requires further studies, including field investigations initiated by the city, in which case the running of the ninety-day period shall be stayed until the required studies are provided;

3. A threshold determination on an action where the applicant recommends in writing that an EIS be prepared because of the probable significant adverse environmental impact described in the application;

4. The applicant requests an extension (not to exceed an additional thirty days); or

5. If the applicant revises the application and such revision requires recirculation or additional analysis, the ninety-day period shall commence upon submittal of the revised application.

Any time limits set forth in this subsection shall not apply to withdrawal of alternative and negative threshold determinations (DS, DNS) where such withdrawals are made in accordance with WAC 197-11-340 and 197-11-360; and

For purposes of the ninety-day period, an application and supporting documentation is deemed complete at such time as the responsible official issues a certification of completion. Such certification will be issued in accordance with an administrative rule adopted by the responsible official. Upon issuance of a certification of completion, the certification shall only be withdrawn in the following circumstances:

a. There are substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts;

b. There is significant new information indicating, or on, a proposal’s probable significant adverse environmental impacts; or

c. The certification of completion was procured by misrepresentation or lack of material disclosure.

In the event that a certificate of completion is withdrawn and the responsible official determines that additional information is needed to process the application, the applicant shall be so notified, and the ninety-day period stayed pending receipt of the requested information by the city.

Upon request by an applicant, the responsible official shall select a date for making the threshold determination and notify the applicant of such date in writing.

(Ord. 1085 § 2 (part), 1999)

Article III. Categorical Exemptions and Threshold Determinations
15.28.120Purpose – Adoption by reference.

This article contains the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. Subject to the additional provisions contained in this article, the city adopts the following sections of WAC Chapter 197-11 by reference:

WAC

197-11-300 Purpose of this part

197-11-305 Categorical exemptions

197-11-310 Threshold determination required

197-11-315 Environmental checklist

197-11-330 Threshold determination process

197-11-335 Additional information

197-11-340 Determination of Nonsignificance (DNS)

197-11-350 Mitigated DNS

197-11-355 Optional DNS Process

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

197-11-390 Effect of threshold determination

(Ord. 1085 § 2 (part), 1999)

15.28.130Flexible thresholds for categorical exemptions.

The following exempt levels are established for minor new construction in the city: under WAC 197-11-8(1)(b) based on conditions in the city:

A. For residential dwelling units in WAC 197-11-800(1)(b)(ii): up to four dwelling units;

B. For agricultural structures in WAC 197-11-800(1)(b)(ii): up to ten thousand square feet;

C. For office, school, commercial, recreational, public, utility, service or storage buildings in WAC 197-11-800(1)(b)(iii): up to twelve thousand square feet and up to twenty parking spaces;

D. For parking lots in WAC 197-11-800(1)(b) (iv): up to twenty parking spaces;

E. For landfills and excavations in WAC 197-11-800(b)(v): up to five hundred cubic yards.

(Ord. 1085 § 2 (part), 1999)

15.28.140Use of categorical exemptions.

A. The applicability of the exemptions shall be determined by the responsible official for each application received for a license, or for each governmental proposal initiated by the city. The determination of whether or not a proposal is exempt shall be made by ascertaining that the proposal is properly defined and by identifying the governmental license required (WAC 197-11-060). The responsible official’s determination that a proposal is exempt shall be final and not subject to administrative review.

B. If a proposal includes a series of actions, physically or functionally related to each other, some of which are exempt and some of which are not, the proposal shall not be exempt.

C. If the proposal includes a series of exempt actions which are physically or functionally related to each other, but which together may have a probable significant adverse environmental impact, the proposal shall not be exempt.

D. 1. If it is determined that a proposal is exempt, none of the procedural requirements of this chapter shall apply to the proposal. No environmental checklist shall be required for an exempt proposal;

2. Provided, however, that the city may itself prepare and use an environmental checklist to review a proposal whenever it would assist in its planning and decision making process.

E. If a proposal includes both exempt and nonexempt actions, exempt actions may be authorized with respect to the proposal prior to compliance with the procedural requirements of these guidelines subject to the following limitations:

1. No nonexempt action shall be authorized;

2. No action shall be authorized which would limit the choice of alternatives;

3. The responsible official may withhold approval of an exempt action which would lead to modification of the physical environment, when such modifications would serve no purpose if later approval of a nonexempt action is not secured;

4. The responsible official may withhold approval of exempt actions which would lead to substantial financial expenditures by a private applicant which would serve no purpose if later approval of a nonexempt action is not secured.

(Ord. 1085 § 2 (part), 1999)

15.28.150Environmental checklist.

A. Except as provided in WAC 197-11-31 5(1)(a), a completed environmental checklist, or a copy thereof, substantially in the form provided in WAC 197-11-960 shall be filed at the same time as, or before, an application for a permit, license, certificate or other entitlement or approval for actions not specifically exempted in this chapter. This checklist shall be the basis for a determination by the city as to lead agency status, and if the city is determined to be the lead agency, then for making the threshold determination.

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

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

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

2. The applicant has provided misleading and inaccurate information on previous proposals or on proposals currently under consideration.

(Ord. 1085 § 2 (part), 1999)

15.28.160Mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a mitigated determination of nonsignificance (mitigated DNS) for a proposal whenever:

1. The city specifies mitigation measures in its DNS and conditions the proposal to include those mitigation measures so that the proposal will not have a probable significant adverse environmental impact; and

2. The proposal is clarified or changed by the applicant to mitigate impacts of the proposal so that, in the judgment of the responsible official, the proposal will not have a probable significant adverse environmental impact.

B. After submission of an environmental checklist and prior to the city’s threshold determination, an applicant may submit a written request for early notice of whether a determination of significance (DS) is likely under WAC 197-11-350.

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

1. Be written;

2. State whether the city currently considers issuance of a DS likely and, if so, indicate the potentially significant adverse environmental impacts that are leading the city to consider a DS; and

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

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

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

1. If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a mitigated determination of nonsignificance under WAC 197-11-340(2). The responsible official shall reconsider the DNS based on timely comments and may retain, modify or withdraw the DNS under WAC 197-11-340(2)(f).

2. If the city indicated potentially significant adverse environmental impacts, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

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

4. Environmental documents need not be revised and resubmitted if the clarifications or changes to the proposal are stated in writing in attachments to, or documents incorporated by reference into, the environmental review record. An addendum may be used in compliance with WAC 197-11-600 and WAC-197-11-425.

5. If a proposal continues to have a probable significant adverse environmental impact, even with mitigation measures, an EIS shall be prepared.

F. A mitigated DNS issued under WAC 197-11-340(2), requires a public notice and a fifteen-day comment period.

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

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

I. The city’s written response under (G) of this section shall not be construed as a determination of significance.

(Ord. 1085 § 2 (part), 1999)

Article IV. Environmental Impact Statement (EIS)
15.28.170Adoption by reference.

This article contains the rules for preparing environmental impact statements or any other environmental document, including threshold determinations under WAC 197-11-360, mitigated determinations of nonsignificance, and determinations of nonsignificance. Subject to the additional provisions contained in this article, the city adopts the following sections of WAC Chapter 197-11 by reference:

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

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 EIS

197-11-460 Issuance of FEIS

(Ord. 1085 § 2 (part), 1999)

15.28.180Preparation of EIS – Additional considerations.

A. Preparation of draft and final EIS’s and draft and final supplemental EIS and Addenda, is the responsibility of the city under the direction of the responsible official per the procedures contained in this section. Before the city issues an EIS or Addendum the responsible official shall be satisfied that it complies with this chapter and WAC Chapter 197-11.

B. The draft and final EIS or FEIS shall be prepared by a consultant selected by the city per the city’s adopted procedures. However, city staff may prepare EIS’s for city proposals. If the responsible official requires an EIS for a proposal, 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 EIS and FEIS prior to distribution.

C. The city may require that an applicant provide information the city does not possess, including specific investigations necessary to identify potentially significant adverse environmental impacts. However, the applicant may not be required to supply information that is not required under this chapter or WAC 197-11-100. (The limitation does not apply to information the city may request under another ordinance or statute.)

1. Preparation of Draft Environmental Impact Statement.

a. When an EIS is required, all information required by the SEPA rules shall be presented by the consultant in substantially the same form as for the draft environmental impact statement in accordance with procedures of subdivision 4 of this subsection C.

b. The responsible official shall assure that the EIS is prepared in a responsible manner and with appropriate methodology. The responsible official shall direct the areas of research and examination to be undertaken, as well as the organization of the resulting document in accordance with subdivision 4 of this subsection C.

c. The draft environmental impact statement or adopted environmental adequate to waive scoping for purposes of WAC 197-11-360 shall be prepared, or reviewed and approved, by the responsible official prior to distribution. If, in the opinion of the responsible official, the information provided by the consultant and/or subconsultant(s) for the draft environmental impact statement is inadequate, erroneous, misleading or otherwise deficient under the standards of this chapter, the responsible official will cause its distribution to be delayed for such time as may be required to correct such deficiencies.

d. Upon acceptance of the information required under this section for the draft environmental impact statement, such information shall become the property of the city and the responsible official shall possess the right to edit, reproduce, modify and distribute such information.

2. Preparation of Final Environmental Impact Statement. Upon acceptance of the draft EIS or adopted environmental documents, the responsible official shall cause its circulation and shall finalize such EIS in accordance with the procedures required by this chapter and the SEPA rules.

3. Consultant Selection for Draft EIS Information or Adoption of Other Environmental Documents.

a. When a DS is issued, a consultant will be selected by the city.

b. When a DS is issued, the applicant shall solicit and provide to the responsible official statements of qualifications for preparation of the EIS from at least three consultants.

c. Based upon the responsible official’s review of the responses to the statement of qualifications, the responsible official shall select a consultant(s) and appropriate subconsultant(s) or reject the proposed consultant(s) and/or subconsultant(s) and require that the applicant solicit new statements of qualifications. The review may include interviews with the responsible official.

d. Upon issuance of a scoping determination by the responsible official, it shall be the responsibility of the applicant to negotiate a contract with the consultant and any subconsultant(s) selected by the responsible official. The contract shall address all items in the scoping document. If there is a conflict between the contract and the scoping document, the scoping document shall prevail. After the responsible official is notified by the consultant and/or subconsultant(s) that the contact(s) with the applicant has been negotiated and executed in accordance with the provisions of this chapter and the city’s adopted procedures, the consultant’s and subconsultant’s work on the EIS shall commence.

e. The responsible official will meet with the consultant and any subconsultants to direct preparation of the draft EIS. The consultant shall meet with the applicant and/or discuss the EIS process with the applicant only when authorized by the responsible official.

f. When the preliminary draft EIS is provided to the responsible official, the consultant shall also provide a copy to the applicant and the applicant shall be provided an opportunity to comment thereupon.

g. All fees charged by the consultant and any subconsultant(s) shall be the responsibility of the applicant. In no event, shall the city be responsible for any such fees charged by the consultant or subconsultant except when the city is the applicant. All consultant and subconsultant contracts shall include language which recognizes that payment of the consultant/subconsultant(s) fees shall be the sole responsibility of the applicant and not the responsibility of the city.

h. In the event the actions or inactions of the consultant/subconsultant(s) jeopardize the EIS process as defined in this chapter, the responsible official is authorized to impose penalties in accordance with rules adopted by the responsible official. Such rules shall be incorporated into the consultant’s/subconsultant’s contract and the contract shall be consistent with said rules.

4. Consultant/Applicant Responsibilities. When a consultant prepares a draft, final or supplemental EIS, the following responsibilities are hereby specified:

a. Consultant and subconsultant(s) selected by city;

b. City determines the scope of the EIS in compliance with WAC 197-11-360, and WAC 197-11-408 or WAC 197-11-410 as appropriate;

c. Applicant negotiates and executes contact with consultant and required subconsultants;

d. Consultant submits information in the form of a preliminary draft EIS to city and applicant;

e. Applicant reviews and provides comments on preliminary draft EIS to city;

f. City reviews the preliminary draft EIS and applicant’s comments;

g. City prepares review comments and directs preliminary draft EIS changes;

h. Consultant prepares rough draft of EIS;

i. City approves rough draft EIS or directs that further revisions be made;

j. Consultant types, binds and prints approved draft EIS in sufficient quantity to satisfy WAC 197-11-455.

The specific number shall be determined by the responsible official;

k. Consultant mails draft EIS to agencies with expertise and jurisdiction, affected tribes and persons requesting a copy in compliance with WAC 197-11-455;

l. City reviews comments and directs consultant in preparation of changes and additions to draft EIS, responses to draft EIS comments and preparation of final EIS;

m. Consultant types and prints final EIS;

n. Consultant circulates final EIS.

D. Public Awareness of Availability of Draft EIS. The responsible official shall inform the public of the availability of the draft EIS and of the procedures for requesting a public hearing by publishing notice in a newspaper of general circulation and by mailing the notice to all public or private groups or individuals who have made timely written request of the city for such notice, including the SEPA mailing list and the neighborhood leader mailing list established under Section 15.28.200(A).

(Ord. 1085 § 2 (part), 1999)

Article V. Commenting
15.28.190Adoption by reference.

This article contains the rules for requesting consultation, commenting on and responding to all environmental documents under SEPA, and includes the rules for public notice and hearings. The city adopts the following sections of WAC Chapter 197-11 by reference, subject to the additional provisions contained in this article:

WAC

197-11-500 Purpose of this part

197-11-502 Inviting comment

197-11-504 Availability and cost of environmental documents

197-11-508 SEPA Register

197-11-510 Public Notice

197-11-535 Public hearings and meetings

197-11-545 Effect of no comment

197-11-550 Specificity of comments

197-11-560 FEIS response to comments

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

(Ord. 1085 § 2 (part), 1999)

15.28.200Public notice.

A. The city shall establish a SEPA mailing list consisting of all public or private groups or individuals who submit a written request with the responsible official that they be notified of all SEPA actions which require public notice under WAC 197-11-510. The city shall also establish a neighborhood leader mailing list which shall include the duly elected chairperson of each neighborhood group. It shall be the responsibility of the neighborhood chairperson or his/her designated representative to notify the responsible official in writing of the name and mailing address of his/her successor. “Neighborhood group” means a group representing a specified geographic area within the city which is formally recognized by the city’s office of neighborhoods and which has elected officers and representatives on the council of neighborhoods.

B. Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(1), the city shall give public notice as follows:

1. For site specific proposals, notice shall be given by: (a) mailing notice to the SEPA mailing list; (b) if a proposal is located within the geographical boundaries of a neighborhood group by mailing notice to the chairperson of that group; and (c) posting the property in a minimum of two locations readily observable from public right-of-way or adjacent property or whenever the subject property fronts on a public street or alley, the property shall be posted with one sign per frontage, including alleys, plus one additional sign for each one hundred fifty lineal feet of frontage; provided, if more than a total of five hundred lineal feet of frontage exists, then the number of actual signs required and their placement shall be discretionary with the responsible official. All signs required to be posted shall remain in place until the final SEPA determination has been made and the applicant shall provide the responsible official with an affidavit of compliance with the posting requirements of this section.

2. For (nonproject) proposals which are not site specific, notice shall be given by: (a) mailing notice to the SEPA mailing list or (b) publishing notice in a newspaper of general circulation in the City of Cle Elum and Kittitas County.

3. In exceptional circumstances, where it is determined that methods of notice provided for in subdivisions 1 or 2 of this subsection B would not provide adequate public notice of a proposed action, the responsible official may require additional notice or notice by another reasonable method. Failure to require additional or alternative notice shall not be a violation of any notice procedure.

4. 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 unless the city adopts an Addendum or other environmental document including for those purposes set forth under WAC 197-11-360.

5. The comment date shall commence on the date that the site is posted or notices published or mailed, whichever occurs later.

C. Whenever the city issues a draft EIS under WAC 197-11-455(5) or a supplemental FEIS 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. Publishing notice in a newspaper of general circulation in the City of Cle Elum; and

3. Mailing notice to the SEPA mailing list.

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

E. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense.

F. For purposes of computing the time period for public notice, the definition of “days” under Section 15.28.040 shall apply. When computing the time period, the day from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. Legal holidays are prescribed in RCW 1.16.050.

(Ord. 1085 § 2 (part), 1999)

15.28.210Designation of official to perform consulted agency responsibilities for the city.

A. The city mayor at telephone number (509) 674-2262 shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in predraft consultation, participation in scoping, and reviewing a draft EIS.

B. The responsible official, Cle Elum City Hall, 301 Pennsylvania, Cle Elum, WA 98922, 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 which will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city.

(Ord. 1085 § 2 (part), 1999)

Article VI. Using Existing Environmental Documents
15.28.220Adoption by reference.

This article contains rules for using and supplementing existing environmental documents prepared under SEPA or The National Environmental Policy Act (NEPA) to meet the city’s environmental review responsibilities under SEPA. The city adopts the following sections of WAC Chapter 197-11 by reference:

WAC

197-11-600 When to use existing environmental documents

197-11-610 Use of NEPA documents

197-11-620 Supplemental environmental impact statement-Procedures

197-11-625 Addenda-Procedures

197-11-630 Adoption-Procedures

197-11-635 Incorporation by reference-Procedures

197-11-640 Combining documents

(Ord. 1085 § 2 (part), 1999)

Article VII. SEPA and Agency Decisions
15.28.230Adoption by reference.

This article contains rules and policies for the use of SEPA’s substantive authority, such as decisions to require mitigation of adverse environmental impacts in compliance with policies contained in this chapter, or decisions to deny a proposal on the basis of significant adverse impacts identified in the environmental review documents prepared under SEPA. This article also contains procedures for appealing SEPA determinations to agencies or the courts. The city adopts the following sections of WAC Chapter 197-11 by reference, subject to the additional provisions contained in this article:

WAC

197-11-650 Purpose of this Part

197-11-655 Implementation

197-11-660 Substantive authority and mitigation

197-11-680 Appeals, except as amended by hearing examiner’s rules under Article XII Hearing Examiners.

(Ord. 1085 § 2 (part), 1999)

15.28.240Substantive authority.

A. The policies, procedures and goals set forth in this chapter are supplementary to those set forth in existing authorizations of all branches of government of this state, including state agencies, municipal and public corporations, and counties.

B. The city 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 city 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 cited in the approval or decision document (such as a DNS, MDNS or decision document issued pursuant to the publication of an EIS).

C. The city 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 final EIS or final supplemental EIS 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 significant adverse identified impact; and

3. The denial is based on one or more policies identified in sections identified in writing in the decision document.

D. In addition to the policies established under sections the city designates and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section:

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

a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

b. Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings;

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

d. Preserve important historic, cultural and natural aspects of our national heritage;

e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

f. Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

2. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

3. The city recognizes its duty to comply with and implement State Health Department and Health Department and Ecology Department requirements for comprehensive water supply and sewage system facilities to serve the city and its service area, including areas designated in the city within its urban growth area or subareas consistent with regional service needs of upper Kittitas County as recognized in agreements between the city, Kittitas County, other entities and jurisdictions and private land owners providing utility services, facilities, supplies or capabilities.

(Ord. 1085 § 2 (part), 1999)

15.28.245Adoption of SEPA policies.

For purposes of RCW 43.21C.060 and substantive, supplemental authority to condition or deny proposals and actions, the following policies have been adopted and are incorporated by reference as if set forth verbatim:

A. RCW 43.21C.020 policies relating to the protection and enhancement of the natural and built environments as defined by SEPA as may hereinafter be amended, and SEPA implementing regulations at WAC Chapter 197-11 as may herein after be amended;

B. Any interlocal agreements, consent orders, compliance orders and court orders entered into between the city and any other local jurisdiction, special purpose district, agency or jurisdiction relating to environmental and development standards, compliance with federal and state laws (including health related requirements for water and sewer supply);

C. The city’s comprehensive plan as may herein after be amended;

D. Any utility agreements entered into between the city and any property owner within the Bull Frog Subarea Plan boundaries as identified in the Bull Frog Urban Growth Area Resolution No. 6/23/98-1 with incorporated consultant attachments;

E. The Storm Water Manual of Kittitas County, as may hereinafter be amended for purposes of requiring stormwater analysis and improvements for proposal and actions which are not categorically exempt;

F. The city’s shoreline management and critical areas codes as may hereinafter be amended;

G. The city’s zoning code and development code as may hereinafter be amended;

H. Ordinance No. ____________ pertaining to annexations and utility service to properties in excess of five acres seeking utility service from the city;

I. Those policies enumerated in Sections 15.28.060 and 15.28.240.

(Ord. 1159 § 1, 2001; Ord. 1137 § 1, 2001; Ord. 1085 § 2 (part), 1999)

15.28.250Appeals.

The city authorizes the following administrative appeals and establishes the following appeal procedures under Chapter 36.70B RCW 43.21C.075 and WAC 197-11-680:

A. Appeals authorized. Administrative appeals shall be available for threshold determinations (determination of significance, determination of nonsignificance, and mitigated determination of nonsignificance “DS; DNS; MDNS” herein) and final environmental impact statement (“FEIS”) adequacy. All appeal hearings under this section shall be conducted by the hearing examiner, who shall make a recommendation to the city council. There shall be no appeal of the city’s use or failure to use substantive SEPA authority (implementing SEPA based mitigation) except as part of any appeal of the underlying project permit decision.

B. Jurisdictional procedural requirements. The following criteria shall be satisfied for all appeals:

1. Standing is limited to aggrieved persons.

2. Appeals shall be commenced by filing with the city a written statement (hereinafter “written appeal statement”) requesting an appeal setting forth the name and address of the person aggrieved, an explanation of why the person is aggrieved and a clear and concise statement of the specific issues for the appeal on a form provided by the city.

3. Written appeal statements shall be accompanied by a nonrefundable five hundred dollar fee.

4. Written appeal statements shall be received by the city no later than fourteen days following the issuance of the threshold determination or FEIS. If the fourteenth day is a Saturday, Sunday, or legal holiday as set forth in RCW 1.16.050, then the next non-Saturday, Sunday, or legal holiday shall be the fourteenth day. When computing the time period, the day from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included.

C. Appeal to hearing examiner. SEPA appeals shall be conducted by the hearing examiner, who holds an open record public hearing (“Section C hearing”) consistent with the procedural requirements of this chapter, and shall make a recommendation to city council.

D. Hearing examiner procedures for SEPA appeals. All SEPA appeals conducted by the hearing examiner under this section shall utilize the following procedures:

1. Notice of the appeal and hearing schedule shall be sent by mail to the appellant, applicant and to all persons who have filed with the responsible official a written request for notice of the pertinent SEPA decision. Notice shall include the deadline for submitting written memoranda to the hearing examiner, the date, time and place of the open record hearing before the hearing examiner, and staff contact information. Notice of the hearings shall be published in a newspaper of general circulation at least fourteen days prior to the hearing.

2. Unless specifically amended by a prehearing order or schedule, SEPA appeals shall adhere to the following schedule:

a. At least twenty days prior to the date of the scheduled hearing, the appellant shall file with the office of the hearing examiner a memorandum setting forth the appellant’s arguments and authority. Such arguments and authority shall be restricted to those issues set forth in appellant’s written appeals statement;

b. At least ten days prior to the date of the scheduled hearing, city staff shall file with the office of the hearing examiner and provide the appellant with a staff report responding to the appellant’s memorandum concerning the appeal. The project proponent, if not the appellant, may also file a written statement regarding the appeal at this time; and

c. At least five days prior to the date of the scheduled hearing, the appellant shall file with the office of the hearing examiner any reply memorandum that the appellant desires to file. The scope of the reply memorandum shall respond only to issues raised in the staff report.

Failure to comply with the requirements of this section may result in the examiner taking such action in regard to the failure as is appropriate including, but not limited to, continuing the hearing, postponing the hearing, striking evidence, limiting the number of witnesses, or limiting testimony at the hearing. The examiner may establish additional procedures for the administration of SEPA appeals.

3. All oral argument concerning the SEPA appeal shall be limited to those issues raised in the written statement of appeal, staff report, or reply memorandum.

4. The hearing examiner’s recommendation regarding the threshold determination or FEIS adequacy may be to uphold the responsible official’s decision, remand the responsible official’s decision, or remand the responsible official’s decision with conditions. The hearing examiner may also recommend dismissal of the appeal when the examiner determines that the appeal is untimely, non-compliant with B.2. and B.3. above, without merit on its face, frivolous, beyond the scope of the examiner’s jurisdiction, not supported by the evidence or that the appellant lacks standing.

5. The examiner’s recommendation shall consist of written findings and conclusions from the record supporting the examiner’s recommendation. Within fourteen days of the conclusion of a hearing, unless the appellant agrees to a longer period, the examiner shall render his or her recommendation, including the findings and conclusions.

6. The examiner’s recommendation shall be sent by mail to appellants, applicants, and all other parties to the appeal. The original recommendation shall be sent to the city council. Publication shall not be required.

E. City council.

1. The city council shall make a final determination regarding the appeal based upon the record prepared by the examiner. The city council may substitute its judgment for that of the examiner on all issues.

2. The city council may grant or deny the appeal, or remand the matter to the examiner for further findings.

F. City council procedures for SEPA appeals.

1. Written argument shall be permitted if received within seven days of the date scheduled for city council action. Written argument shall be limited to why the record supports or fails to support the examiner’s recommendation.

2. Clerical errors may be corrected by the council on its own action and copies mailed to the parties.

3. Notice of the city council’s decisions shall be sent by mail to appellants, applicants, and any other parties to the appeal. The decision shall also be transmitted to the decision making authority for the appeal of the underlying action. Publication shall not be required.

G. Consolidation requirements.

1. Appeals of determinations of significance shall not be consolidated with appeals of the underlying project, if any.

2. Type II applications. Appeals of a determination of nonsignificance, or FEIS adequacy issued for Type II applications or Type I applications which trigger SEPA shall be consolidated with the appeal of the underlying application. A decision on the SEPA appeal shall be reached pursuant to subsections B, C, D, E and F above, provided, however that Section C hearing held by the examiner shall be consolidated with the open record public hearing in front of the city planner.

3. Type III applications. Appeals of a determination of nonsignificance, mitigated determination of nonsignificance, or FEIS adequacy issued for Type III applications shall be consolidated with the appeal of the underlying application. A decision on the SEPA appeal shall be reached pursuant to subsections B, C, C, E and F above, provided, however, that the Section C hearing held by the examiner shall be consolidated with the open record public hearing in front of the decision body.

4. Appeals of a determination of nonsignificance, mitigated determination of nonsignificance, of FEIS adequacy issued for Type IV applications shall be reached pursuant to subsections B, C, D, E and F above, provided, however, that the Section C hearing held by the examiner shall be consolidated with the open record public hearing in front of the planning commission.

5. There shall be no additional administrative SEPA appeals beyond those provided for above.

H. Substantial weight. The determinations made by the city’s responsible official shall be entitled to substantial weight before the examiner and the city council.

(Ord. 1159 § 1, 2001; Ord. 1137 § 1, 2001: Ord. 1085 § 2 (part), 1999)

15.28.260Notice – Statute of limitations.

A. The city, 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 city clerk or proponent pursuant to RCW 43.21C.080.

(Ord. 1085 § 2 (part), 1999)

Article VIII. Categorical Exemption
15.28.270Adoption by reference.

The city adopts by reference the following sections of WAC Chapter 197-11 for categorical exemptions:

WAC

197-11-800 Categorical exemptions

197-11-880 Emergencies

197-11-890 Petitioning DOE to change exemptions

(Ord. 1085 § 2 (part), 1999)

Article IX. Agency Compliance
15.28.280Adoption by reference.

This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The city adopts the following sections of WAC Chapter 197-11 by reference, subject to the additional provisions contained in this article:

WAC

197-11-900 Purpose of this Part

197-11-902 Agency SEPA policies

197-11-924 SEPA Fees and Costs

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 agency for specific proposals

197-11-940 Transfer of lead agency status to a state agency

197-11-942 Agreements on lead agency status

197-11-944 Agreements on division of lead agency duties

197-11-946 DOE resolution of lead agency disputes

197-11-948 Assumption of lead agency status

(Ord. 1085 § 2 (part), 1999)

15.28.290Environmentally sensitive areas.

A. In cooperation with affected federal, state and local agencies, and tribes, the responsible official shall develop an inventory of environmentally sensitive or critical area sites, which shall be designating environmentally sensitive sites:

a. SEPA resource inventory study;

b. Location of land adjacent to parks, steams, bluffs, contiguous environmentally sensitive parcels, lakes and bogs;

c. Contains steep slopes in ravine areas;

d. Contains drainage swales, bogs, streams or other surface water bodies;

e. Unstable or water-bearing soils;

f. Unique flora and unique fauna;

g. Historic and archaeological sites.

2. In conjunction with the inventory of environmentally sensitive sites, the responsible official shall submit a list of categorical exemptions that do not apply within the designated environmentally sensitive area.

3. The inventory of environmentally sensitive sites and a map designating such areas along with a list of categorical exemptions that do not apply in such areas shall be presented to the city council, which shall hold a public hearing on the proposed environmentally sensitive areas.

4. After final adoption by the city council, the responsible official shall file maps designating environmentally sensitive areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the city clerk and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.

5. Revisions to the inventory, designation and map’s environmentally sensitive areas shall be accomplished using the procedures set forth in this section.

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

C. Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped.

(Ord. 1085 § 2 (part), 1999)

15.28.300Fees.

A. 

1. Except as otherwise noted in this chapter, all fees required for processing of actions by the city in accordance with the provisions of this chapter shall be established by the land use development permit fee ordinance.

2. The time periods provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

B. Environmental Impact Statement.

1. Notwithstanding any provisions of this chapter, the responsible official may with the concurrence of the applicant contract directly with a consultant or subconsultant for preparation of an EIS, or a portion of the EIS and may bill such costs and expenses directly to the applicant. The city may require that the applicant post bond or other guaranty device satisfactory to the city to otherwise ensure payment of such costs:

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

C. 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 proposals.

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

E. 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 RCW Chapter 42.17.

(Ord. 1085 § 2 (part), 1999)

Article X. Forms
15.28.310Adoption by reference.

A. The City of Cle Elum adopts the following forms and sections of WAC Chapter 197-11 by reference, subject to the additional provisions contained in this article:

WAC

197-11-960 Environmental checklist

197-11-965 Adoption notice

197-11-970 Determination of Nonsignificance (DNS)

197-11-980 Determination of significance and scoping notice (DS)

197-11-985 Notice of assumption of lead agency status

197-11-990 Notice of action

B. The city shall use the forms substantially as set forth in the SEPA rules. However, the responsible official may modify the forms if he or she determines that a modified format would improve clear presentation of the proposed action, the environmental impacts of the proposed action, the environmental determination being made by the city, and/or the opportunity for commenting on the proposed action or environmental determination.

(Ord. 1085 § 2 (part), 1999)

Article XI. Third Party Liability
15.28.320Third party liability.

A. This chapter provides for and promotes the health, safety and welfare of the general public and does not create or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of this chapter.

B. Nothing contained in this chapter is intended to be nor shall be construed to create or form the basis for any liability on the part of the city, its officers, employees or agents, for any injury or damage resulting from the failure of any applicant to comply with the provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, permission or approval authorized or issued or completed in connection with the implementation or enforcement pursuant to this chapter or by reason of any action or inaction on the part of the city related in any manner to the enforcement of this chapter by its officers, employees or agents.

(Ord. 1085 § 2 (part), 1999)

Article XII. Hearing Examiners for Review of SEPA Actions
15.28.365Dismissal – Exhaustion.

A. The hearing examiner may summarily dismiss an appeal or application in whole or in part without hearing when the examiner determines that the appeal or application is untimely, without merit on its face, frivolous, beyond the scope of his or her jurisdiction, not supported by evidence or fact, is merely conclusory, represents solely community displeasure with a proposal, action or application, brought merely to secure a delay, or that the applicant/appellant lacks standing. Summary dismissal orders shall be issued within fifteen days following receipt of an appeal or request of an order of dismissal by any party to the proceedings.

B. No person may seek judicial review of any decision or determination of the city unless the person first exhausts the administrative remedies provided by the city.

(Ord. 1085 § 2 (part), 1999)

15.28.400Appeal of city’s decision.

The decision of the examiner constitutes the final decision of the city except when the examiner makes a recommendation to city council, then the final decision of the city shall be the city council’s. Appeals of the city’s final decision shall be to Kittitas County Superior Court in accordance with Part VII (appeals) of the Regulatory Reform Act (Chapter 347 of the 1995 Laws of the state of Washington) now codified as RCW 36.70C; provided, however, appeals from the city’s final decision on shoreline management substantial development permits shall be to the Shoreline Hearings Board pursuant to RCW Chapter 90.58. All costs of transcription, copying, assembly and staff time required to prepare a return or administrative record for any judicial appeal shall be borne by the party appellant.