Chapter 19.07
ENVIRONMENT Revised 6/17

Sections:

19.07.010    Purpose.

19.07.020    General provisions. Revised 6/17

19.07.030    Allowed alterations and reasonable use exception.

19.07.040    Review and construction requirements. Revised 6/17

19.07.050    Critical area study.

19.07.060    Geologic hazard areas.

19.07.070    Watercourses.

19.07.080    Wetlands.

19.07.090    Wildlife habitat conservation areas.

19.07.100    Repealed.

19.07.110    Shoreline master program.

19.07.120    Environmental procedures. Revised 6/17

19.07.010 Purpose.

These regulations are adopted for the following purposes:

A. To designate and protect critical areas as mandated by Chapter 36.70A RCW;

B. To include best available science in developing policies to protect the functions of critical areas as mandated by Chapter 36.70A RCW;

C. To prevent undue hazards to public health, safety, and welfare by minimizing impacts to critical areas;

D. To implement the city’s comprehensive plan; and

E. To respond to the goals and objectives of the Washington State Growth Management Act, while reflecting the local conditions and priorities of Mercer Island. (Ord. 05C-12 § 5).

19.07.020 General provisions. Revised 6/17

A. Applicability. Any alteration of a critical area or buffer shall meet the requirements of this chapter unless an allowed alteration or reasonable use exception applies pursuant to MICC 19.07.030.

B. Public Notice – Critical Area Determination. A critical area determination requires public notice pursuant to MICC 19.15.020(E). A decision on a critical area determination may be appealed to the hearing examiner following the appeals process described in MICC 19.15.020(J).

C. Critical Area Designation and Mapping. The approximate location and extent of critical areas are shown on the city’s critical area maps (Appendix E), as now existing or hereafter amended. These maps are to be used as a reference only. The applicant is responsible for determining the scope, extent and boundaries of any critical areas to the satisfaction of the code official.

D. Administrative Guidelines. The code official may adopt administrative guidelines describing specific improvements to critical areas that are based on best available science and satisfy the no net loss standard described in this chapter.

E. Compliance with Other Federal, State or Local Laws. All approvals under this chapter, including critical area determinations and reasonable use exceptions, do not modify an applicant’s obligation to comply in all respects with the applicable provisions of any other federal, state, or local law or regulation. (Ord. 17C-12 § 6; Ord. 05C-12 § 5).

19.07.030 Allowed alterations and reasonable use exception.

A. Allowed Alterations. The following alterations to critical areas and buffers are allowed and the applicant is not required to comply with the other regulations of this chapter, subject to an applicant satisfying the specific conditions set forth below to the satisfaction of the code official; and subject further, that the code official may require a geotechnical report for any alteration within a geologic hazard area:

1. Emergency actions necessary to prevent an immediate threat to public health, safety or welfare, or that pose an immediate risk of damage to private property. After the emergency, the code official shall be notified of these actions within seven days. The person or agency undertaking the action shall fully restore and/or mitigate any impacts to critical areas and buffers and submit complete applications to obtain all required permits and approvals following such work. The mitigation and restoration work will be completed within 180 days from issuance of required permits.

2. Operation, maintenance, renovation or repair of existing structures, facilities and landscaping, provided there is no further intrusion or expansion into a critical area.

3. Minor Site Investigative Work. Work necessary for land use submittals, such as surveys, soil logs, percolation tests, and other related activities, where such activities do not require construction of new access roads or significant amounts of excavation. In every case, impacts shall be mitigated and disturbed areas shall be restored.

4. Boundary Markers. Construction or modification of navigational aids and boundary markers.

5. Existing Streets and Utilities. Replacement, modification or reconstruction of existing streets and utilities in developed utility easements and in developed streets, subject to the following:

a. The activity must utilize best management practices; and

b. The activity is performed to mitigate impacts to critical areas to the greatest extent reasonably feasible consistent with best available science.

6. New Streets, Driveways, Bridges and Rights-of-Way. Construction of new streets and driveways, including pedestrian and bicycle paths, subject to the following:

a. Construction is consistent with best management practices;

b. The facility is designed and located to mitigate impacts to critical areas consistent with best available science;

c. Impacts to critical areas are mitigated to the greatest extent reasonably feasible so there is no net loss in critical area functions; and

d. The code official may require a critical area study or restoration plan for this allowed alteration.

7. New Utility Facilities. New utilities, not including substations, subject to the following:

a. Construction is consistent with best management practices;

b. The facility is designed and located to mitigate impacts to critical areas consistent with best available science;

c. Impacts to critical areas are mitigated to the greatest extent reasonably feasible so there is no net loss in critical area functions;

d. Utilities shall be contained within the footprint of an existing street, driveway, paved area, or utility crossing where possible; and

e. The code official may require a critical area study or restoration plan for this allowed alteration.

8. The removal of noxious weeds with hand labor and/or light equipment; provided, that the appropriate erosion-control measures are used and the area is revegetated with native vegetation.

9. Public and private nonmotorized trails subject to the following:

a. The trail surface should be made of pervious materials, unless the code official determines impervious materials are necessary to ensure user safety;

b. Trails shall be located to mitigate the encroachment; and

c. Trails proposed to be located in a geologic hazard area shall be constructed in a manner that does not significantly increase the risk of landslide or erosion hazard. The city may require a geotechnical review pursuant to MICC 19.07.060.

10. Existing single-family residences may be expanded or reconstructed in buffers, provided all of the following are met:

a. The applicant must demonstrate why buffer averaging or reduction pursuant to MICC 19.07.070(B) will not provide the necessary relief;

b. Expansion within a buffer is limited to 500 square feet beyond the existing footprint that existed on January 1, 2005;

c. The expansion is not located closer to the critical area than the closest point of the existing residence;

d. The functions of critical areas are preserved to the greatest extent reasonably feasible consistent with best available science;

e. Impacts to critical areas are mitigated to the greatest extent reasonably feasible so that there is no net loss in critical area functions;

f. Drainage capabilities are not adversely impacted; and

g. The city may require a critical area study or restoration plan for this exemption.

11. Conservation, preservation, restoration and/or enhancement of critical areas that does not negatively impact the functions of any critical area. If the proposed work requires hydraulic project approval from the State of Washington Department of Fisheries, the code official may require a critical area study.

12. Tree pruning, cutting and removal in accordance with the permit requirements of Chapter 19.10 MICC, Trees.

13. Alterations to Category III and IV wetlands of low value under 2,500 square feet.

If a project does not qualify as an allowed alteration under this section, it may be allowed through a reasonable use exception or if it is consistent with the other regulations in this chapter.

B. Reasonable Use Exception.

1. Application Process. If the application of these regulations deny reasonable use of a subject property, a property owner may apply to the hearing examiner for a reasonable use exception pursuant to permit review, public notice and appeal procedures set forth in Chapter 19.15 MICC.

2. Studies Required. An application for a reasonable use exception shall include a critical area study and any other related project documents, such as permit applications to other agencies, and environmental documents prepared pursuant to the State Environmental Policy Act.

3. Criteria. The hearing examiner will approve the application if it satisfies all of the following criteria:

a. The application of these regulations deny any reasonable use of the property. The hearing examiner will consider the amount and percentage of lost economic value to the property owner;

b. No other reasonable use of the property has less impact on critical areas. The hearing examiner may consider alternative reasonable uses in considering the application;

c. Any alteration to critical areas is the minimum necessary to allow for reasonable use of the property;

d. Impacts to critical areas are mitigated to the greatest extent reasonably feasible consistent with best available science;

e. The proposal does not pose an unreasonable threat to the public health, safety, or welfare; and

f. The inability of the applicant to derive reasonable use of the property is not the result of actions by the applicant after the effective date of this chapter.

The hearing examiner may approve, approve with conditions, or deny the request based on the proposal’s ability to comply with all of the above criteria. The applicant has the burden of proof in demonstrating that the above criteria are met. Appeals of the hearing examiner’s decision may be made to Washington State Superior Court. (Ord. 05C-12 § 5).

19.07.040 Review and construction requirements. Revised 6/17

A. Development Standards. The applicant will comply with the general development standards set forth in Chapter 19.09 MICC.

B. Native Growth Protection Areas.

1. Native growth protection areas may be used in development proposals for subdivisions and lot line revisions to delineate and protect contiguous critical areas.

2. Native growth protection areas shall be designated on the face of the plat or recorded drawing in a format approved by the city. The designation shall include an assurance that native vegetation will be preserved and grant the city the right to enforce the terms of the restriction.

C. Setback Deviation. An applicant may seek a deviation from required front and back yard setbacks pursuant to MICC 19.02.020(C)(4).

D. Variances. Variances pursuant to MICC 19.01.070 are not available to reduce any numeric requirement of this chapter. However, the allowed alterations and the reasonable use exception allowed pursuant to MICC 19.07.030 may result in city approvals with reduced numeric requirements.

E. Appeals. Appeals of decisions made under the provisions of this chapter shall follow the procedures described in MICC 19.15.020(J).

F. Fees. Fees shall be set forth in a schedule adopted by city council resolution. The fee should be based on a submittal fee and the time required to review development applications for alterations within critical areas and buffers.

G. Hold Harmless/Indemnification Agreement and Covenant Not to Sue, Performance Guarantees, Performance Bonds, Insurance. An applicant for a permit within a critical area will comply with the requirements of MICC 19.01.060, if required by the code official.

H. Erosion Control Measures.

1. A temporary erosion and sediment control plan shall be required for alterations on sites that contain critical areas.

2. Erosion control measures shall be in place, including along the outer edge of critical areas prior to clearing and grading. Monitoring surface water discharge from the site during construction may be required at the discretion of the code official.

I. Timing. All alterations or mitigation to critical areas shall be completed prior to the final inspection and occupancy of a project. Upon a showing of good cause, the code official may extend the completion period.

J. Maintenance and Monitoring.

1. Landscape maintenance and monitoring may be required for up to five years from the date of project completion if the code official determines such condition is necessary to ensure mitigation success and critical area protection.

2. Where monitoring reveals a significant variance from predicted impacts or a failure of protection measures, the applicant shall be responsible for appropriate corrective action, which may be subject to further monitoring.

K. Suspension of Work. If the alteration does not meet city standards established by permit condition or applicable codes, including controls for water quality, erosion and sedimentation, the city may suspend further work on the site until such standards are met. (Ord. 17C-12 § 6; Ord. 05C-12 § 5).

19.07.050 Critical area study.

When a critical area study is required under MICC 19.07.030, 19.07.060, 19.07.070, 19.07.080 or 19.07.090, the following documents are required:

A. Site survey.

B. Cover sheet and site construction plan.

C. Mitigation and restoration plan to include the following information:

1. Location of existing trees and vegetation and proposed removal of same;

2. Mitigation proposed including location, type, and number of replacement trees and vegetation;

3. Delineation of critical areas;

4. In the case of a wildlife habitat conservation area, identification of any known endangered or threatened species on the site;

5. Proposed grading;

6. Description of impacts to the functions of critical areas; and

7. Proposed monitoring plan.

A mitigation and restoration plan may be combined with a storm water control management plan or other required plan. Additional requirements that apply to specific critical areas are located in MICC 19.07.060, Geologic hazard areas; MICC 19.07.070, Watercourses; MICC 19.07.080, Wetlands; and MICC 19.07.090, Wildlife habitat conservation areas.

D. Storm water and erosion control management plan consistent with Chapter 15.09 MICC. Off-site measures may be required to correct impacts from the proposed alteration.

E. Other technical information consistent with the above requirements, as required by the code official.

The critical area study requirement may be waived or modified if the code official determines that such information is not necessary for the protection of the critical area. (Ord. 05C-12 § 5).

19.07.060 Geologic hazard areas.

A. Designation. All property meeting the definition of a geologic hazard area is designated as a geologic hazard area.

B. Buffers. There are no buffers for geologic hazard areas, but a geotechnical report is required prior to making alterations in geologic hazard areas. This provision shall not change development limitations imposed by the creation of building pads under MICC 19.09.090.

C. Geotechnical Review.

1. The applicant must submit a geotechnical report concluding that the proposal can effectively mitigate risks of the hazard. Consistent with MICC 19.07.050, the report shall suggest appropriate design and development measures to mitigate such hazards.

2. The city may require peer review of the geotechnical report by a second qualified professional to verify the adequacy of the information and analysis. The applicant shall bear the cost of the peer review.

3. The code official may waive the requirement for a geotechnical report when the proposed alteration does not pose a threat to the public health, safety and welfare in the sole opinion of the code official.

D. Site Development.

1. Development Conditions. Alterations of geologic hazard areas may occur if the code official concludes that such alterations:

a. Will not adversely impact other critical areas;

b. Will not adversely impact (e.g., landslides, earth movement, increase surface water flows, etc.) the subject property or adjacent properties;

c. Will mitigate impacts to the geologic hazard area consistent with best available science to the maximum extent reasonably possible such that the site is determined to be safe; and

d. Include the landscaping of all disturbed areas outside of building footprints and installation of all impervious surfaces prior to final inspection.

2. Statement of Risk. Alteration within geologic hazard areas may occur if the development conditions listed above are satisfied and the geotechnical professional provides a statement of risk with supporting documentation indicating that one of the following conditions can be met:

a. The geologic hazard area will be modified, or the development has been designed so that the risk to the lot and adjacent property is eliminated or mitigated such that the site is determined to be safe;

b. Construction practices are proposed for the alteration that would render the development as safe as if it were not located in a geologic hazard area;

c. The alteration is so minor as not to pose a threat to the public health, safety and welfare; or

d. An evaluation of site specific subsurface conditions demonstrates that the proposed development is not located in a geologic hazard area.

3. Development Limitations. Within a landslide hazard area, the code official may restrict alterations to the minimum extent necessary for the construction and maintenance of structures and related access where such action is deemed necessary to mitigate the hazard associated with development.

4. Seasonal Limitations. Land clearing, grading, filling, and foundation work within geologic hazard areas are not permitted between October 1 and April 1. The code official may grant a waiver to this seasonal development limitation if the applicant provides a geotechnical report of the site and the proposed construction activities that concludes erosion and sedimentation impacts can be effectively controlled on-site consistent with adopted storm water standards and the proposed construction work will not subject people or property, including areas off-site, to an increased risk of the hazard. As a condition of the waiver, the code official may require erosion control measures, restoration plans, and/or an indemnification/release agreement. Peer review of the geotechnical report may be required in accordance with subsection C of this section. If site activities result in erosion impacts or threaten water quality standards, the city may suspend further work on the site and/or require remedial action. (Ord. 05C-12 § 5).

19.07.070 Watercourses.

A. Watercourses – Designation and Typing. Watercourses shall be designated as Type 1, Type 2, Type 3 and Restored according to the following criteria:

1. Type 1 Watercourse. Watercourses or reaches of watercourses used by fish, or are downstream of areas used by fish.

2. Type 2 Watercourse. Watercourses or reaches of watercourses with year-round flow, not used by fish.

3. Type 3 Watercourse. Watercourses or reaches of watercourses with intermittent or seasonal flow and not used by fish.

4. Restored Watercourse. Any Type 1, 2 or 3 watercourses created from the opening of previously piped, channelized or culverted watercourses.

B. Watercourse Buffers.

1. Watercourse Buffer Widths. Standard buffer widths shall be as follows, measured from the ordinary high water mark (OHW), or top of bank if the OHW cannot be determined through simple nontechnical observations.

Watercourse Type

Standard (Base) Buffer Width (feet)

Minimum Buffer Width with Enhancement (feet)

Type 1

75

37

Type 2

50

25

Type 3

35

25

Restored or Piped

25

Determined by the code official

2. Reduction of Buffer Widths.

a. The code official may allow the standard buffer width to be reduced to not less than the above listed minimum width in accordance with an approved critical area study when he/she determines that a smaller area is adequate to protect the watercourse, the impacts will be mitigated by using combinations of the below mitigation options, and the proposal will result in no net loss of watercourse and buffer functions. However, in no case shall a reduced buffer contain a steep slope.

b. The code official may consider the following mitigation options:

i. Permanent removal of impervious surfaces and replacement with native vegetation;

ii. Installation of biofiltration/infiltration mechanisms such as bioswales, created and/or enhanced wetlands, or ponds supplemental to existing storm drainage and water quality requirements;

iii. Removal of noxious weeds, replanting with native vegetation and five-year monitoring;

iv. Habitat enhancement within the watercourse such as log structure placement, bioengineered bank stabilization, culvert removal, improved salmonid passage and/or creation of side channel or backwater areas;

v. Use of best management practices (e.g., oil/water separators) for storm water quality control exceeding standard requirements;

vi. Installation of pervious material for driveway or road construction;

vii. Use of “green” roofs in accordance with the standards of the LEED Green Building Rating System;

viii. Restoration of off-site area if no on-site area is possible;

ix. Removal of sources of toxic material that predate the applicant’s ownership; and

x. Opening of previously channelized and culverted watercourses on-site or off-site.

3. Averaging of Buffer Widths. The code official may allow the standard buffer width to be averaged if:

a. The proposal will result in a net improvement of critical area function;

b. The proposal will include replanting of the averaged buffer using native vegetation;

c. The total area contained in the averaged buffers on the development proposal site is not decreased below the total area that would be provided if the maximum width were not averaged;

d. The standard buffer width is not reduced to a width that is less than the minimum buffer width at any location; and

e. That portion of the buffer that has been reduced in width shall not contain a steep slope.

4. Restoring Piped Watercourses.

a. Removal of pipes conveying watercourses shall only occur when the code official determines that the proposal will result in a net improvement of ecological functions and will not significantly increase the threat of erosion, flooding, slope stability or other hazards.

b. Where the buffer of the restored watercourse would extend beyond a required setback the applicant shall obtain written agreement from the affected neighboring property owner. The city may deny a request to restore a watercourse if it results in buffers being adjusted and increased onto adjacent properties.

C. Impervious Surfaces. Impervious surface shall not be permitted within a watercourse or watercourse buffer except as specifically provided in this chapter.

D. Development Standards.

1. Type 3 watercourses may be relocated when such relocation results in equivalent or improved watercourse functions. Type 1 and 2 watercourses shall not be relocated except through the reasonable use exception.

2. Existing watercourses shall not be placed into culverts except as provided by the allowed alterations or reasonable use exception. When culverts are allowed, they shall be designed to mitigate impacts to critical area functions. Oversize and open bottom culverts lined with rock that maintain a semi-natural stream bed are preferred to round culverts. (Ord. 08C-01 § 3; Ord. 05C-12 § 5).

19.07.080 Wetlands.

A. Wetland Designation. All property meeting the definition of a wetland in the Wetland Manual is designated as a wetland.

B. Wetland Ratings. Wetlands shall be rated as Category I, Category II, Category III or Category IV according to the wetland classification system.

C. Wetland Buffers.

1. Standard Wetland Buffer Widths. The following standard buffer widths shall be established from the outer edge of wetland boundaries:

Wetland Type

Standard (Base) Buffer Width (feet)

Minimum Buffer Width with Enhancement (feet)

Category I*

100

50

Category II

75

37

Category III

50

25

Category IV

35

25

*    Note: There are no known Category I wetlands in the city.

2. Reduction of Wetland Buffer Widths. The code official may allow the standard wetland buffer width to be reduced to not less than the minimum buffer width in accordance with an approved critical area study when he/she determines that a smaller area is adequate to protect the wetland functions, the impacts will be mitigated consistent with MICC 19.07.070(B)(2), and the proposal will result in no net loss of wetland and buffer functions.

3. Averaging of Wetland Buffer Widths. The code official may allow averaging of the standard wetland buffer widths in accordance with the criteria of MICC 19.07.070(B)(3).

D. Alterations. Category III and IV wetlands of less than one acre in size may be altered if the applicant can demonstrate that the wetland will be restored, enhanced, and/or replaced with a wetland area of equivalent or greater function. In cases where the applicant demonstrates that a suitable on-site solution does not exist to enhance, restore, replace or maintain a wetland in its existing condition, the city may permit the applicant to provide off-site replacement by a wetland with equal or better functions. The off-site location must be in the same drainage sub-basin as the original wetland. (Ord. 05C-12 § 5).

19.07.090 Wildlife habitat conservation areas.

A. Designation. Bald eagles are the only endangered or threatened non-aquatic wildlife species known to inhabit Mercer Island and the city designates those areas used by these species for nesting, breeding, feeding and survival as wildlife habitat conservation areas. If other non-aquatic species are later added by the State Washington Fish and Wildlife Department as endangered or threatened as set forth in WAC 232-12-011 through 232-12-014, as amended, the city council will consider amending this section to add such species. The provisions of this section do not apply to any habitat areas which come under the jurisdiction of the city’s shoreline master program. The city’s watercourse, wetland and shoreline regulations in this chapter provide required protections for aquatic species.

B. Establishment of Buffers. For any wildlife habitat conservation area located within other critical areas regulated in this chapter, the buffers for those critical areas shall apply except where species exist that have been identified by the State Department of Fish and Wildlife as endangered or threatened. If such species are present, the applicant shall comply with all state or federal laws in connection with any alteration of the wildlife habitat conservation area and the code official may require a critical area study.

C. Seasonal Restrictions. When a species is more susceptible to adverse impacts during specific periods of the year, seasonal restrictions may apply. Activities may be further restricted and buffers may be increased during the specified season. (Ord. 05C-12 § 5).

19.07.100 Shoreline areas.

Repealed by Ord. 13C-12. (Ord. 08C-01 § 3; Ord. 05C-12 § 6; Ord. 02C-09 § 6; Ord. 99C-13 § 1. Formerly 19.07.050).

19.07.110 Shoreline master program.

A. Authority and Purpose.

1. Authority. This section is adopted as part of the shoreline master program of the city. It is adopted pursuant to the authority and requirements of Chapter 90.58 RCW and Chapter 173-26 WAC.

2. Applicability. The requirements of this section apply to all uses, activities and development within the shorelands, unless specifically exempted. All proposed uses and development occurring within shoreline jurisdiction must conform to Chapter 90.58 RCW, the Shoreline Management Act.

3. Purpose and Intent. It is the purpose and intent of this section to achieve the shoreline master program (SMP) mandates of the state of Washington and to adopt property development standards within the shorelands that protect the health, safety, welfare, values and property interests of the city of Mercer Island and its residents.

4. Relationship with Other Mercer Island Codes and Ordinances. This section is an integrated element of the city of Mercer Island Unified Land Development Code (MICC Title 19) and other applicable development regulations contained in the Mercer Island City Code, including the storm water management regulations in MICC Title 15, and building and construction regulations in MICC Title 17. The provisions of the critical areas ordinance (MICC 19.07.010 through and including 19.07.090 as in effect on January 1, 2011) are hereby incorporated as specific regulations of the shoreline master program. To the extent this section conflicts with any other section of the Mercer Island City Code, the provisions of this section shall govern within the shorelands.

5. Relationship with Other Federal and State Law. The provisions of this section shall not relieve any responsibility to comply with other federal and state laws or permits. All work at or waterward of the OHWM may require permits from one or all of the following: U.S. Army Corps of Engineers, Washington Department of Fish and Wildlife, Washington Department of Natural Resources or Washington Department of Ecology.

B. General Regulations.

1. Legal Nonconforming Uses and Structures May Continue. Overwater uses and structures, and uses and structures 25 feet landward from the OHWM, which were legally created may be maintained, repaired, renovated, remodeled and completely replaced to the extent that nonconformance with the standards and regulations of this section is not increased.

2. No Net Loss Standard and Mitigation Sequencing. No development shall be approved unless the applicant demonstrates to the code official’s satisfaction that the shoreline development will not create a net loss of ecological function in the shorelands.

a. Standards Presumed to Meet No Net Loss. When all individual development standards that apply to a development project do not explicitly require a determination of no net loss and the project conforms with all such standards, there is a rebuttable presumption that the project does not create a net loss of ecological function to the shorelands.

b. No Net Loss Plan. Whenever an applicant seeks a variance or conditional use permit or an applicable development standard explicitly requires a determination of no net loss of ecological function, the applicant shall provide the city with a plan that demonstrates the proposed project will not create a net loss in ecological function to the shorelands. The plan shall accomplish no net loss of ecological function by avoiding adverse ecological impacts that are not reasonably necessary to complete the project, minimizing adverse ecological impacts that are reasonably necessary to complete the project, and mitigating or offsetting any adverse impacts to ecological functions or ecosystem-wide processes caused by the project. The code official may require the plan to include reports from qualified professionals with expertise in ecological function. The plan’s compliance with the no net loss requirement may be considered through the SEPA process.

i. Off-Site Mitigation Permitted. While on-site mitigation is preferred, off-site mitigation may be permitted at the discretion of the code official.

ii. Demonstration of No Net Loss Supported by a Qualified Professional. The code official may require any applicant to provide reports by qualified professionals that demonstrate to the code official’s satisfaction that the applicant’s proposed plan avoids a net loss in ecological function.

3. Expansion of Legal Nonconforming Structures. Expansions of legal nonconforming overwater structures and structures upland 25 feet from the OHWM are permitted; provided, that the expanded structure is constructed in compliance with this section and all other standards and provisions of the Mercer Island development regulations.

4. Shoreline Habitat and Natural Enhancements Held Harmless. In those instances where the OHWM moves further landward as a result of any action required by this section, or in accordance with permits involving a shoreline habitat and nature systems enhancement approved by the city, or a state or federal agency, the shoreline setback shall be measured from the location of the OHWM that existed immediately prior to the action or enhancement project.

C. Shoreline Map and Designations. The shoreline environmental designations map, dated March 3, 2011, as shown in Appendix F, is adopted as the official Mercer Island shoreline environmental designations map. The digital map is available in the online version of the Mercer Island City Code at http://www.mercergov.org. All shorelands within the city are designated. Different areas of the city’s shorelands have different natural characteristics and development patterns. As a result, two shoreline designated environments are established to regulate developments and uses consistent with the specific conditions of the designated environments and to protect resources of the Mercer Island shorelands. They are:

1. Urban Park Environment. This environment consists of shoreland areas designated for public access and active and passive public recreation. The areas include, but are not limited to, parks, street ends, public utilities and other publicly owned rights-of-way. The uses located in this environment should be water-dependent and designed with no net loss to the ecological functions of the shorelands. Restoration of ecological functions is planned for these areas and is strongly encouraged. The preferred and priority use in the urban park environment is public access to, and enjoyment of, Lake Washington.

2. Urban Residential Environment. The purpose of the urban residential environment is to provide for residential and recreational utilization of the shorelands, compatible with the existing residential character in terms of bulk, scale, type of development and no net loss of ecological functions of the shorelands. The preferred and priority use in the urban residential environment is single-family residential use.

D. Use Regulations. The following tables specify the shoreline uses and developments which may take place or be conducted within the designated environments. The uses and developments listed in the matrix are allowed only if they are not in conflict with more restrictive regulations of the Mercer Island development code and are in compliance with the standards specified in subsection E of this section.

KEY:

CE:

Permitted via shoreline categorically exempt

P:

Permitted use

P-1:

Uses permitted when authorized by a conditional use permit for the applicable zone shall also require a shoreline substantial development permit and a shoreline plan in compliance with MICC 19.07.110(B)(2)

SCUP:

Shoreline conditional use permit

NP:

Not a permitted use

The following regulations apply to all uses and development within the shorelands, whether or not that development is exempt from the permit requirements:

Table A – Shoreland Uses Landward of the Ordinary High Water Mark 

SHORELAND USE LANDWARD OF THE OHWM

Urban Residential Environment

Urban Park Environment

Single-family dwelling including accessory uses and accessory structures

CE

NP

Accessory dwelling units

CE

NP

The use of a single-family dwelling as a bed and breakfast

P-1

NP

A state-licensed day care or preschool

P-1

NP

Government services, public facilities, and museums and art exhibitions

P-1

P

Public parks and open space

P

P

Private recreational areas

P

NP

Semi-private waterfront recreation areas for use by 10 or fewer families

P

NP

Semi-private waterfront recreation areas for use by more than 10 families

P-1

NP

Noncommercial recreational areas

P-1

P

Commercial recreational areas

NP

NP

Places of worship

P-1

NP

Retirement homes located on property used primarily for a place of worship

P-1

NP

Special needs group housing

P

NP

Social service transitional housing

P

NP

Public schools accredited or approved by the state for compulsory school attendance

NP

NP

Private schools accredited or approved by the state for compulsory school attendance

NP

NP

Streets and parking

P

P

Transit facilities including light rail transit facilities, transit stops, and associated parking lots

P

NP

Wireless communications facilities

P

P

New hard structural shoreline stabilization

SCUP

SCUP

Soft structural shoreline stabilization

P

P

Shoreland surface modification

P

P

Restoration of ecological functions including shoreline habitat and natural systems enhancement

P

P

Boat ramp

P

P

Agriculture, aquaculture, forest practices and mining

NP

NP

 

Table B – Shoreland Uses Waterward of the Ordinary High Water Mark 

SHORELAND USE WATERWARD OF THE OHWM

Urban Residential Environment

Urban Park Environment

Moorage facilities and covered moorages 600 square feet or less

P

P

Covered moorage larger than 600 square feet

SCUP

SCUP

Floating platforms

P

P

Mooring piles, diving boards and diving platforms

P

P

Boat ramp

P

P

Boat houses

NP

NP

Floating homes

NP

NP

Public access pier or boardwalk

P

P

Utilities

P

P

Public transportation facilities including roads, bridges, and transit

P

P

Transit facilities including light rail transit facilities

P

NP

Dredging and dredge material disposal

P

P

Breakwaters, jetties, and groins (except those for restoration of ecological functions)

NP

NP

Restoration of ecological functions including shoreline habitat and natural systems enhancement

P

P

Notes:

A use not listed in this table is not permitted within shorelands.

A use permitted by this table shall meet all other applicable regulations, including, but not limited to, being an allowed use in the applicable zone.

E. Shoreland Development Standards. All development within the shoreline jurisdiction shall be in compliance with all development requirements specified in this section.

1. Standards Landward of the OWHM. The standards in Table C shall apply to development located landward of the OHWM:

Table C. Requirements for Development Located Landward from the OHWM 

Setbacks for All Structures (Including Fences over 48 Inches High) and Parking

A*

25 feet from the OHWM and all required setbacks of the development code, except light rail transit facilities. If a wetland is adjacent to the shoreline, measure the shoreline setback from the wetland’s boundary

Height Limits for All Structures

B

Shall be the same as height limits specified in the development code but shall not exceed a height of 35 feet above average building elevation, except light rail transit facilities

Maximum Impervious Surface Coverage

C

D

10%: between 0 and 25 feet from OHWM

30%: between 25 and 50 feet from OHWM

Minimum Land Area Requirements

E

All semi-private, commercial and noncommercial recreational tracts and areas shall have minimum land area: 200 square feet per family, but not less than 600 square feet, exclusive of driveways or parking areas. Screening of the boundaries with abutting properties

Shoreland Surface Modification

 

Alterations over 250 cubic yards – outside the building footprint requires SEPA

Height Limits for Light Rail Transit Facilities within the Existing I-90 Corridor

 

The trackway and overhead wires, support poles, and similar features necessary to operate light rail transit facilities may be erected upon and exceed the height of the existing I-90 bridges

*The letters in this column refer to the Plan View (A) and Section (A) diagrams.

2. Bulkheads and Shoreline Stabilization Structures.

a. An existing shoreline stabilization structure may be replaced with a similar structure if there is a demonstrated need to protect principal uses or structures from erosion caused by currents or waves, and the following conditions shall apply:

i. The replacement structure should be designed, located, sized, and constructed to assure no net loss of ecological functions.

ii. Replacement walls or bulkheads shall not encroach waterward of the ordinary high water mark or existing structure unless the primary structure was occupied prior to January 1, 1992, and there are overriding safety or environmental concerns. In such cases, the replacement structure shall abut the existing shoreline stabilization structure. Soft shoreline stabilization measures that provide restoration of shoreline ecological functions may be permitted waterward of the ordinary high water mark.

iii. For purposes of this section standards on shoreline stabilization measures, “replacement” means the construction of a new structure to perform a shoreline stabilization function of an existing structure which can no longer adequately serve its purpose. Additions to or increases in size of existing shoreline stabilization measures shall be considered new structures.

iv. Construction and maintenance of normal protective bulkhead common to single-family dwellings requires only a shoreline exemption permit, unless a report is required by the code official to ensure compliance with the above conditions; however, if the construction of the bulkhead is undertaken wholly or in part on lands covered by water, such construction shall comply with SEPA mitigation.

b. New Structures for Existing Primary Structures. New or enlarged structural shoreline stabilization measures for an existing primary structure, including residences, are not allowed unless there is conclusive evidence, documented by a geotechnical analysis, that the structure is in danger from shoreline erosion caused by currents, or waves. Normal sloughing, erosion of steep bluffs, or shoreline erosion itself, without a scientific or geotechnical analysis, is not demonstration of need. The geotechnical analysis should evaluate on-site drainage issues and address drainage problems away from the shoreline edge before considering structural shoreline stabilization. New or enlarged erosion control structure shall not result in a net loss of shoreline ecological functions.

c. New development should be located and designed to avoid the need for future shoreline stabilization to the extent feasible. This future shoreline stabilization standard does not apply to stabilization that occurs pursuant to subsection (E)(2)(a) of this section. New structural stabilization measures in support of new non-water-dependent development, including single-family residences, shall only be allowed when all of the conditions below apply:

i. The erosion is not being caused by upland conditions, such as the loss of vegetation and drainage.

ii. Nonstructural measures, such as placing the development further from the shoreline, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

iii. The need to protect primary structures from damage due to erosion is demonstrated through a geotechnical report, in compliance with subsection (E)(2)(h) of this section. The damage must be caused by natural processes, such as currents and waves.

iv. The erosion control structure will not result in a net loss of shoreline ecological functions.

d. New development on steep slopes or bluffs shall be set back sufficiently to ensure that shoreline stabilization is unlikely to be necessary during the life of the structure, as demonstrated by a geotechnical analysis, in compliance with subsection (E)(2)(h) of this section and building and construction codes.

e. New structural stabilization measures in support of water-dependent development shall only be allowed when all of the conditions below apply:

i. The erosion is not being caused by upland conditions, such as the loss of vegetation and drainage.

ii. Nonstructural measures, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

iii. The need to protect primary structures from damage due to erosion is demonstrated through a geotechnical report, in compliance with subsection (E)(2)(h) of this section and building and construction codes.

iv. The erosion control structure will not result in a net loss of shoreline ecological functions.

f. New structural stabilization measures to protect projects for the restoration of ecological functions or hazardous substance remediation projects pursuant to Chapter 70.105D RCW shall only be allowed when all of the conditions below apply:

i. Nonstructural measures, planting vegetation, or installing on-site drainage improvements, are not feasible or not sufficient.

ii. The erosion control structure will not result in a net loss of shoreline ecological functions.

g. Bulkheads shall be located generally parallel to the natural shoreline. No filling may be allowed waterward of the ordinary high water mark, unless there has been severe and unusual erosion within two years immediately preceding the application for the bulkhead. In this event the city may allow the placement of the bulkhead to recover the dry land area lost by erosion.

h. Geotechnical reports pursuant to this section that address the need to prevent potential damage to a primary structure shall address the necessity for shoreline stabilization by estimating time frames and rates of erosion and report on the urgency associated with the specific situation. As a general matter, hard armoring solutions should not be authorized except when a report confirms that there is a significant possibility that such a structure will be damaged within three years as a result of shoreline erosion in the absence of such hard armoring measures, or where waiting until the need is that immediate would foreclose the opportunity to use measures that avoid impacts on ecological functions. Thus, where the geotechnical report confirms a need to prevent potential damage to a primary structure, but the need is not as immediate as the three years, that report may still be used to justify more immediate authorization to protect against erosion using soft measures.

i. When any structural shoreline stabilization measures are demonstrated to be necessary, pursuant to above provisions, the following shall apply:

i. Limit the size of stabilization measures to the minimum necessary. Use measures designed to assure no net loss of shoreline ecological functions. Soft approaches shall be used unless demonstrated not to be sufficient to protect primary structures, dwellings, and businesses.

ii. Ensure that publicly financed or subsidized shoreline erosion control measures do not permanently restrict appropriate public access to the shoreline except where such access is determined to be infeasible because of incompatible uses, safety, security, or harm to ecological functions. See public access provisions: WAC 173-26-221(4). Where feasible, incorporate ecological restoration and public access improvements into the project.

iii. Mitigate new erosion control measures, including replacement structures, on feeder bluffs or other actions that affect beach sediment-producing areas to avoid and, if that is not possible, to minimize adverse impacts to sediment conveyance systems. Where sediment conveyance systems cross jurisdictional boundaries, local governments should coordinate shoreline management efforts. If beach erosion is threatening existing development, local governments should adopt master program provisions for a beach management district or other institutional mechanism to provide comprehensive mitigation for the adverse impacts of erosion control measures.

j. The development of two or more dwelling units on a lot abutting the OHWM should provide joint use or community dock facilities, when feasible, rather than allow individual docks for each lot.

3. Transportation and Parking.

a. Shoreline circulation system planning shall include safe, reasonable, and adequate systems for pedestrian, bicycle, and public transportation where appropriate. Circulation planning and projects should support existing and proposed shoreline uses that are consistent with all regulations.

b. Transportation and parking facilities shall be planned, located, and designed where routes will have the least possible adverse effect on unique or fragile shoreline features, and will not result in a net loss of shoreline ecological functions or adversely impact existing or planned water-dependent uses.

c. Where other options are available and feasible, new roads or road expansions should not be built within shorelands.

d. Parking facilities in shorelands shall be allowed only as necessary to support an authorized use.

4. Standards Waterward of the OHWM. Moorage facilities may be developed and used as an accessory to dwellings on shoreline lots. Only one noncommercial, residential moorage facility per upland residential waterfront lot authorized. The standards in Table D shall apply to development located waterward of the OHWM:

Table D. Requirements for Moorage Facilities and Development Located Waterward from the OHWM 

Setbacks for All Moorage Facilities, Covered Moorage, and Floating Platforms

A*

10 feet from the lateral line (except where moorage facility is built pursuant to the agreement between adjoining owners as shown in Figure B below).

B

Where a property shares a common boundary with the urban park environment, the setback shall be 50 feet from the lateral line or 50% of the water frontage of the property, whichever is less.

Setbacks for Boat Ramps and Other Facilities for Launching Boats by Auto or Hand, Including Parking and Maneuvering Space

C

25 feet from any adjacent private property line.

Length or Maximum Distance Waterward from the OHWM for Moorage Facilities, Covered Moorage, Boatlifts and Floating Platforms

D

Maximum 100 feet, but in cases where water depth is less than 11.85 feet below OHWM, length may extend up to 150 feet or to the point where water depth is 11.85 feet at OHWM, whichever is less.

Width of moorage facilities within 30 feet waterward from the OHWM

E

Maximum 4 feet. Width may increase to 5 feet if one of the following is met:

1) Water depth is 4.85 feet or more, as measured from the OHWM; or

2) A moorage facility is required to comply with Americans with Disabilities Act (ADA) requirements; or

3) A resident of the property has a documented permanent state disability as defined in WAC 308-96B-010(5); or

4) The proposed project includes mitigation option A, B or C listed in Table E; and for replacement actions, there is either a net reduction in overwater coverage within 30 feet waterward from the OHWM, or a site-specific report is prepared by a qualified professional demonstrating no net loss of ecological function of the shorelands. Moorage facility width shall not include pilings, boat ramps and lift stations.

Width of moorage facilities more than 30 feet waterward from the OHWM

E

Maximum 6 feet wide. Moorage facility width shall not include pilings, boat ramps and lift stations.

Height Limits for Walls, Handrails and Storage Containers Located on Piers

F

3.5 feet above the surface of a dock or pier.

4 feet for ramps and gangways designed to span the area 0 feet to 30 feet from the OHWM.

Height Limits for Mooring Piles, Diving Boards and Diving Platforms

G

10 feet above the elevation of the OHWM.

Height Limits for Light Rail Transit Facilities within the Existing I-90 Corridor

 

The trackway and overhead wires, support poles, and similar features necessary to operate light rail transit facilities may be erected upon and exceed the height of the existing I-90 bridges.

*The letters in this column refer to the Plan View (B) and Section (B) diagrams.

 

Table D. Requirements for Moorage Facilities and Development Located Waterward from the OHWM (Continued)

Minimum Water Frontage for Moorage Facility

H*

Single-family lots: 40 feet.

I

Shared – two adjoining lots: 40 feet combined.

J

Semi-private recreational tracts:

2 families: 40 feet.

3 – 5 families: 40 feet plus 10 feet for each family more than 2.

6 – 10 families: 70 feet plus 5 feet for each family more than 5.

11 – 100 families: 95 feet plus 2 feet for each family more than 10.

101+ families: 275 feet plus 1 foot for each family more than 100.

Covered Moorage

 

Permitted on single-family residential lots subject to the following:

(a) Maximum height above the OHWM: 16 feet; 16 to 21 feet subject to criteria of MICC 19.07.110(E)(5)(a).

(b) Location/area requirements: See Figure A for single-family lots and Figure B for shared moorage.

(c) Building area: 600 square feet; however, a covered moorage may be built larger than 600 square feet within the triangle subject to a shoreline conditional use permit.

(d) Covered moorage shall have open sides.

(e) Prohibited in semi-private recreational tracts and noncommercial recreational areas.

(f) Translucent canopies are required.

*The letters in this column refer to the Plan View (C).

 

Table E. Dock Width Mitigation Options 

Option A

Option B

Option C

Includes at Least One of the Following:

Includes at Least Two of the Following:

Includes at Least Three of the Following:

1. Complete removal of existing bulkhead with shoreline restoration

1. Removal of 12 feet or 30% (lineal), whichever is greater, of existing bulkhead and creation of beach cove with shoreline restoration

1. Installation/Replacement of decking within the first 30 feet waterward from the OHWM that allows a minimum of 60% light transmittance.

2. Removal of an existing legally established boat house (A “boat house” is a covered moorage that includes walls and a roof to protect the vessel.)

2. Installation/Replacement of decking within the first 30 feet waterward from the OHWM that allows a minimum of 60% light transmittance.

2. Removal of all existing legally established piling treated with creosote or comparably toxic compounds

3. Replacement of two or more existing legally established individual moorage facilities with a single joint use moorage facility

3. Removal of an existing legally established covered moorage within the first 30 feet waterward from the OHWM

3. At least a 10% net reduction of existing legally established overwater coverage within the first 30 feet waterward from OHWM

 

 

4. Removal of all legally established individual mooring piles within the first 30 feet waterward from the OHWM

 

 

5. Removal of an existing legally established covered moorage within the first 30 feet waterward from the OHWM

5. The covered portion of a moorage shall be restricted to the area lying within a triangle as illustrated in Figure A, except as otherwise provided in subsection (E)(5)(a) of this section. The base of the triangle shall be a line drawn between the points of intersection of the property lateral lines with the ordinary high water mark. The location of the covered moorage shall not extend more than 100 feet from the center of the base line of such triangle. In cases where water depth is less than 11.85 feet from OHWM, the location of the covered moorage may extend up to 150 feet from the center of the base line or to the point where water depth is 11.85 feet at OHWM, whichever is less. The required 10-foot setbacks from the side property lines shall be deducted from the triangle area.

a. A covered moorage is allowed outside the triangle, or a canopy up to 21 feet in height, if the covered moorage meets all other regulations and:

i. Will not constitute a hazard to the public health, welfare, and safety, or be injurious to affected shoreline properties in the vicinity;

ii. Will constitute a lower impact for abutting property owners; and

iii. Is not in conflict with the general intent and purpose of the SMA, the shoreline master program and the development code.

Figure A: Area of Permitted Covered Moorage, Individual Lots

b. Where a covered moorage or moorage facility is built pursuant to the agreement of adjoining owners of single-family lots, the covered moorage area shall be deemed to include, subject to limitations of such joint agreement, all of the combined areas lying within the triangles extended upon each adjoining property and the inverted triangle situated between the aforesaid triangles, as illustrated in Figure B below.

Figure B: Area of Permitted Covered Moorage and Moorage Facilities, Two Adjoining Single-Family Lots

c. Covered moorage is not allowed within the first 30 feet from the OHWM unless the applicant:

i. Demonstrates to the code official’s satisfaction that proposed project will not create a net loss in ecological function of the shorelands; and

ii. Provides the city with documentation of approval of the moorage facilities by both the U.S. Army Corps of Engineers and the Washington Department of Fish and Wildlife.

6. Moorage Facilities. All permits for new and expanded moorage facility shall meet the following standards unless otherwise exempted. Moorage facilities have the option of meeting either the development standards prescribed in subsections (E)(6)(a) or (b) of this section, or the “alternative development standards” in subsection (E)(6)(c) of this section.

a. Development Standards for New and Expanded Moorage Facilities. A proposed moorage facility shall be presumed to not create a net loss of ecological functions pursuant to subsection (B)(2) of this section if:

i. The surface coverage area of the moorage facility is:

(A) Four hundred eighty square feet or less for a single property owner;

(B) Seven hundred square feet or less for two residential property owners (residential); or

(C) One thousand square feet or less for three or more residential property owners;

ii. Piers, docks, and platform lifts must be fully grated with materials that allow a minimum of 40 percent light transmittance;

iii. Vegetation. The code official approves a vegetation plan that conforms to the following:

Vegetation must be planted as provided in Figure C and as follows: Within the 25-foot shoreline setback, a 20-foot vegetation area shall be established, measured landward from the OHWM. Twenty-five percent of the area shall contain vegetation coverage. The five feet nearest the OHWM shall contain at least 25 percent native vegetation coverage. A shoreline vegetation plan shall be submitted to the city for approval. The vegetation coverage shall consist of a variety of ground cover shrubs and trees, excluding nonnative grasses. No plants on the current King County noxious weed lists shall be planted within the shorelands.

Figure C: Vegetation Plan

iv. Only piers, ramps, and lift stations may be within the first 30 feet from the OHWM. No skirting is allowed on any structure;

v. The height above the OHWM for moorage facilities, except floats, shall be a minimum of one and one-half feet and a maximum of five feet;

vi. The first in-water (nearest the OWHM) set of pilings shall be steel, 10 inches in diameter or less, and at least 18 feet from the OHWM. Piling sets beyond the first shall also be spaced at least 18 feet apart and shall not be greater than 12 inches in diameter. Piles shall not be treated with pentachlorophenol, creosote, CCA or comparably toxic compounds. If ammoniacal copper zinc arsenate (ACZA) pilings are proposed, the applicant shall meet all of the best management practices, including a post-treatment procedure, as outlined in the amended Best Management Practices of the Western Wood Preservers. All piling sizes are in nominal diameter;

vii. Any paint, stain or preservative applied to components of the overwater structure must be leach resistant, completely dried or cured prior to installation. Materials shall not be treated with pentochlorophenol, creosote, CCA or comparably toxic compounds;

viii. No more than two mooring piles shall be installed per structure. Joint-use structures may have up to four mooring piles. The limits include existing mooring piles. Moorage piling shall not be installed within 30 feet of the OHWM. These piles shall be as far offshore as possible;

ix. The applicant shall abide by the work windows for listed species established by the U.S. Army Corps of Engineers and Washington Fish and Wildlife; and

x. Disturbance of bank vegetation shall be limited to the minimum amount necessary to accomplish the project. Disturbed bank vegetation shall be replaced with native, locally adapted herbaceous and/or woody vegetation. Herbaceous plantings shall occur within 48 hours of the completion of construction. Woody vegetation components shall be planted in the fall or early winter, whichever occurs first. The applicant shall take appropriate measures to ensure revegetation success.

b. Development Standards for Replacement, Repair and Maintenance of Overwater Structures, Including Moorage Facilities. The maintenance, repair and complete replacement of legally existing overwater structures is permitted; provided, that:

i. All permit requirements of federal and state agencies are met;

ii. The area, width, or length of the structure is not increased, but may be decreased;

iii. The height of any structure is not increased, but may be decreased; provided, that the height above the OHWM may be increased as provided in subsection (E)(6)(b)(ix)(B) of this section;

iv. The location of any structure is not changed unless the applicant demonstrates to the director’s satisfaction that the proposed change in location results in: (A) a net gain in ecological function, and (B) a higher degree of conformity with the location standards for a new overwater structure;

v. Piles shall not be treated with pentachlorophenol, creosote, CCA or comparably toxic compounds. If ammoniacal copper zinc arsenate (ACZA) pilings are proposed, the applicant shall meet all of the best management practices, including a post-treatment procedure, as outlined in the amended Best Management Practices of the Western Wood Preservers. All piling sizes are in nominal diameter;

vi. Any paint, stain or preservative applied to components of the overwater structure must be leach resistant, completely dried or cured prior to installation. Materials shall not be treated with pentochlorophenol, creosote, CCA or comparably toxic compounds;

vii. The applicant shall abide by the work windows for listed species established by the U.S. Army Corps of Engineers and Washington Fish and Wildlife;

viii. Disturbance of bank vegetation shall be limited to the minimum amount necessary to accomplish the project. Disturbed bank vegetation shall be replaced with native, locally adapted herbaceous and/or woody vegetation. Herbaceous plantings shall occur within 48 hours of the completion of construction. Woody vegetation components shall be planted in the fall or early winter, whichever occurs first. The applicant shall take appropriate measures to ensure revegetation success; and

ix. If more than 50 percent of the structure’s exterior surface (including decking) or structural elements (including pilings) are replaced or reconstructed during the five years immediately prior to any demolition for the replacement or reconstruction, the replaced or reconstructed area of the structure must also comply with the following standards:

(A) Piers, docks, and platform lifts must be fully grated with materials that allow a minimum of 40 percent light transmittance;

(B) The height above the OHWM for moorage facilities, except floats, shall be a minimum of one and one-half feet and a maximum of five feet; and

(C) An existing moorage facility that is five feet wide or more within 30 feet waterward from the OHWM shall be replaced or repaired with a moorage facility that complies with the width of moorage facilities standards specified in subsection (E)(4) of this section (Table D).

c. Alternative Development Standards. The code official shall approve moorage facilities not in compliance with the development standards in subsection (E)(6)(a) or (b) of this section subject to both U.S. Army Corps of Engineers and Washington Department of Fish and Wildlife approval to an alternate project design. The following requirements and all other applicable provisions in this chapter shall be met:

i. The dock must be no larger than authorized through state and federal approval;

ii. The maximum width must comply with the width of moorage facilities standards specified in subsection (E)(4) of this section (Table D);

iii. The minimum water depth must be no shallower than authorized through state and federal approval;

iv. The applicant must demonstrate to the code official’s satisfaction that the proposed project will not create a net loss in ecological function of the shorelands; and

v. The applicant must provide the city with documentation of approval of the moorage facilities by both the U.S. Army Corps of Engineers and the Washington Department of Fish and Wildlife.

7. Breakwaters, jetties, groins, and weirs. Breakwaters, jetties, groins, weirs, and similar structures are prohibited, except for those structures installed to protect or restore ecological functions, such as woody debris installed in streams. Breakwaters, jetties, groins, and weirs shall be designed to protect critical areas and shall provide for mitigation according to the sequence defined in WAC 173-26-201(2)(e).

8. Dredging.

a. Dredging shall be permitted only if navigational access has been unduly restricted or other extraordinary conditions in conjunction with water-dependent use; provided, that the use meets all state and federal regulations.

b. Dredging shall be the minimum necessary to accommodate the proposed use.

c. Dredging shall utilize techniques that cause the least possible environmental and aesthetic impact.

d. Dredging is prohibited in the following locations:

i. Fish spawning areas except when the applicant conclusively demonstrated that fish habitat will be significantly improved as a result of the project.

ii. In unique environments such as lake logging of the underwater forest.

e. Dredging and the disposal of dredged material shall comply with Ecology water quality certification process and U.S. Army Corps of Engineers permit requirements. The location and manner of the disposal shall be approved by the city.

9. General Requirements. The following requirements apply to the following types of activities that may be waterward and/or landward of the OHWM:

a. Critical Areas within the shorelands are regulated by MICC 19.07.010 through and including 19.07.090, as adopted in the MICC on January 1, 2011, except: MICC 19.07.030(B), Reasonable Use Exception, and 19.07.040(C), Setback Deviation, and (D), Variances.

b. Utilities.

i. Utilities shall be placed underground and in common rights-of-way wherever economically and technically practical.

ii. Shoreline public access shall be encouraged on publicly owned utility rights-of-way, when such access will not unduly interfere with utility operations or endanger public health and safety. Utility easements on private property will not be used for public access, unless otherwise provided for in such easement.

iii. Restoration of the site is required upon completion of utility installation.

c. Archaeological and Historic Resources.

i. If archaeological resources are uncovered during excavation, the developer and property owner shall immediately stop work and notify the city, the Office of Archaeology and Historic Preservation, and affected Indian tribes.

ii. In areas documented to contain archaeological resources by the Office of Archaeology and Historic Preservation, a site inspection or evaluation is required by a professional archaeologist in coordination with affected Indian tribes.

d. New development adding over 500 square feet of additional gross floor area or impervious surface, including the primary structures and appurtenances, shall be required to provide native vegetation coverage over 50 percent of the 20-foot vegetation area shown on Figure C. This standard shall apply to the total of all new impervious surface area added in the five years immediately prior to the construction of the gross floor area or impervious surface addition.

i. New development over 1,000 square feet of additional gross floor area or impervious surface, including the primary structures and appurtenances, shall be required to provide native vegetation coverage over 75 percent of the 20-foot vegetation area shown in Figure C.

ii. A shoreline vegetation plan shall be submitted to the city for approval.

iii. The vegetation coverage shall consist of a variety of ground cover shrubs and trees indigenous to the central Puget Sound lowland ecoregion and suitable to the specific site conditions. Existing mature trees and shrubs, but excluding noxious weeds, may be included in the coverage requirement if located in the 20-foot vegetation area shown in Figure C.

iv. No plants on the current King County noxious weed lists shall be planted within the shorelands. (Ord. 15C-02 §§ 1, 2; Ord. 13C-12 § 2).

19.07.120 Environmental procedures. Revised 6/17

A. Authority. The city adopts the ordinance codified in this section under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904. This section contains this city’s SEPA procedures and policies. The SEPA rules, Chapter 197-11 WAC, must be used in conjunction with this section.

B. Purpose. The purpose of these procedures is to implement the requirements of the State Environmental Policy Act of 1971 (SEPA), Chapter 43.21C RCW, as amended, and the SEPA rules adopted by the State Department of Ecology and the authority and function of the city as provided therein. These procedures shall provide the city with principles, objectives, criteria and definitions to provide an efficient overall city-wide approach for implementation of the State Environmental Policy Act and Rules. These procedures shall also designate the responsible official, where applicable, and assign responsibilities within the city under the National Environmental Policy Act (NEPA).

C. Scope and Coverage. It is the intent of the city that compliance with the requirements of this section shall constitute procedural compliance with SEPA and the SEPA rules for all proposals. To the fullest extent possible, the procedures required by this section shall be integrated with existing planning and licensing procedures utilized by the city.

D. Adoption by Reference. The city adopts by reference as though fully set forth in this section, the following sections and subsections of Chapter 197-11 WAC (the SEPA rules) as adopted by the Department of Ecology of the state of Washington on January 26, 1984, and as the same may be hereafter amended:

WAC

197-11-020    (3)    Purpose

197-11-030    Policy

197-11-040    Definitions

197-11-050    Lead agency

197-11-055    Timing of the SEPA process

197-11-060    Content of environmental review

197-11-070    Limitations on actions during the SEPA process

197-11-080    Incomplete or unavailable information

197-11-090    Supporting documents

197-11-100    Information required of applicants

197-11-300    Purpose of this part (categorical exemptions and threshold determinations)

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

197-11-350    Mitigated DNS

197-11-355    Optional DNS procedure

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

197-11-390    Effect of threshold determination

197-11-400    Purpose of EIS

197-11-402    General requirements

197-11-405    EIS types

197-11-406    EIS timing

197-11-408    Scoping

197-11-410    Expanded scoping

197-11-420    EIS preparation

197-11-425    Style and size

197-11-430    Format

197-11-435    Cover letter or memo

197-11-440    EIS contents

197-11-442    EIS contents 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

197-11-500    Purpose of this part (commenting)

197-11-502    Inviting comments

197-11-504    Availability and cost of environmental documents

197-11-508    (2)    SEPA register

197-11-535    Public hearings and meetings

197-11-545    Effect of no comment

197-11-550    Specificity of comments

197-11-560    FEIS response to comments

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

197-11-600    When to use existing environmental documents

197-11-610    Use of NEPA documents

197-11-620    Supplemental environmental impact statement – Procedures

197-11-625    Addenda – Procedures

197-11-630    Adoption – Procedures

197-11-635    Incorporation by reference – Procedures

197-11-640    Combining documents

197-11-650    Purpose of this part (SEPA and agency decisions)

197-11-655    Implementation

197-11-660    Substantive authority and mitigation

197-11-680    Appeals

197-11-700    Definitions

197-11-702    Act

197-11-704    Action

197-11-706    Addendum

197-11-708    Adoption

197-11-710    Affected tribe

197-11-712    Affecting

197-11-714    Agency

197-11-716    Applicant

197-11-718    Built environment

197-11-720    Categorical exemption

197-11-722    Consolidated appeal

197-11-724    Consulted agency

197-11-726    Cost benefit analysis

197-11-728    County/city

197-11-730    Decisionmaker

197-11-732    Department

197-11-734    Determination of nonsignificance (DNS)

197-11-736    Determination of significance (DS)

197-11-738    EIS

197-11-740    Environment

197-11-742    Environmental checklist

197-11-744    Environmental document

197-11-746    Environmental review

197-11-748    Environmentally sensitive area

197-11-750    Expanded scoping

197-11-752    Impacts

197-11-754    Incorporation by reference

197-11-756    Lands covered by water

197-11-758    Lead agency

197-11-760    License

197-11-762    Local agency

197-11-764    Major action

197-11-766    Mitigated DNS

197-11-768    Mitigation

197-11-770    Natural environment

197-11-772    NEPA

197-11-774    Nonproject

197-11-776    Phased review

197-11-778    Preparation

197-11-780    Private project

197-11-782    Probable

197-11-784    Proposal

197-11-786    Reasonable alternative

197-11-788    Responsible official

197-11-790    SEPA

197-11-792    Scope

197-11-793    Scoping

197-11-794    Significant

197-11-796    State agency

197-11-797    Threshold determination

197-11-799    Underlying governmental action

197-11-800    Categorical exemptions

197-11-880    Emergencies

197-11-890    Petitioning Department of Ecology to change exemptions

197-11-900    Purpose of this part (agency compliance)

197-11-902    Agency SEPA policies

197-11-904    Agency SEPA procedures

197-11-906    Content and consistency of agency procedures

197-11-910    Designation of responsible official

197-11-916    Application to ongoing actions

197-11-920    Agencies with environmental expertise

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

197-11-942    Agreements on lead agency status

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

197-11-946    DOE resolution of lead agency disputes

197-11-948    Assumption of lead agency status

197-11-960    Environmental checklist

197-11-965    Adoption notice

197-11-970    Determination of nonsignificance (DNS)

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

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

197-11-990    Notice of action

E. Abbreviations. The following abbreviations are used in this section:

1. DEIS: Draft Environmental Impact Statement.

2. DNS: Determination of Nonsignificance.

3. DS: Determination of Significance.

4. EIS: Environmental Impact Statement.

5. FEIS: Final Environmental Impact Statement.

6. SEIS: Supplemental Environmental Impact Statement.

F. Designation of Responsible Official. For those proposals for which the city is the lead agency, the responsible official shall be the director of the development services group or a duly authorized designee.

G. Responsible Official – Duties. The responsible official shall:

1. Perform all duties of the responsible official under SEPA and the SEPA rules, and this section.

2. Perform all duties required to be performed by the city under NEPA, including the provision of coordination with the appropriate federal agencies.

3. Make the threshold determination on all proposals for which the city is the lead agency.

4. Supervise scoping and the preparation of all draft and final environmental impact statements and supplemental environmental impact statements, whether the same are prepared by the city or an applicant.

5. Establish procedures as needed for the preparation of environmental documents, including environmental impact statements.

6. Ensure that environmental factors are considered by city decisionmakers.

7. Coordinate the response of the city when the city is a consulted agency, and prepare timely written comments, which include data from all appropriate city departments, in response to consultation requests prior to a threshold determination.

8. Provide information to citizens, proposal sponsors and others concerning SEPA and this section.

9. Retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW.

10. Perform any other function assigned to the lead agency or responsible official by those sections of the SEPA rules that were adopted by reference in subsection D of this section.

H. Lead Agency Determination and Responsibilities.

1. The city department receiving an application for or initiating a proposal that involves a nonexempt action shall ask the responsible official to 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.

2. 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 EIS.

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

4. If the city or any city department receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-

11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within 15 days of receipt of the determination, or the city must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the city must be initiated by the responsible official.

5. City departments are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, the responsible official and any city department that will incur responsibilities as the result of any such agreement approve the agreement.

I. Timing of the Environmental Review Process.

1. The timing of the environmental review process shall be determined based on the criteria in the SEPA rules and this part of this section.

2. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications as part of a complete application for such permit or license, the applicant may request in writing that the city conduct environmental review prior to submission of such detailed plans and specifications. A decision as to whether or not to do early environmental review, prior to receiving a complete application, shall be at the discretion of the responsible official.

3. The responsible official may elect to do early environmental review if adequate information is available to determine the size and scope of the proposed action, including dimensions and use of all proposed structures, project timing, and the extent of clearing and grading.

4. The city may initiate preliminary environmental review and have informal conferences with applicants prior to receipt of a complete application. However, this review shall not be binding on the city or the applicant (see also MICC 19.07.010(A)(1), Performance Standards for All Development).

5. For city-initiated proposals, the initiating city department should contact the responsible official as soon as a proposal is formulated to integrate environmental concerns into the decision-making process as soon as possible.

6. The procedural requirements of SEPA and this section shall be completed prior to the issuance of a permit or final decision on a nonexempt proposal.

J. Determination of Categorical Exemption.

1. Upon the receipt of an application for a proposal, the receiving city department shall, and for city proposals, the initiating city department shall, determine whether the proposal is an action potentially subject to SEPA and, if so, whether it is categorically exempt. This determination shall be made based on the definition of action (WAC 197-11-704), and the process for determining categorical exemption (WAC 197-11-305). As required, city departments shall ensure that the total proposal is considered. If there is any question whether or not a proposal is exempt, then the responsible official shall be consulted.

2. If a proposal is exempt, none of the procedural requirements of this section apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal. The determination that a proposal is exempt shall be final and not subject to administrative review.

3. If the proposal is not categorically exempt, the city department making this determination (if different from proponent) shall notify the proponent of the proposal that it must submit an environmental checklist (or copies thereof) to the responsible official.

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

a. The city shall not give authorization for:

i. Any nonexempt action;

ii. Any action that would have an adverse environmental impact; or

iii. Any action that would limit the choice of alternatives;

b. A city department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

c. A city 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 actions were not approved.

5. The following types of construction shall be categorically exempt, except when undertaken wholly or partly on lands covered by water, or a rezone or any license governing emissions to the air or discharges to water is required:

a. The construction or location of any residential structures of four or fewer dwelling units;

b. The construction of an office, school, commercial, recreational, service or storage building with 4,000 square feet or less of gross floor area and with associated parking facilities designed for 20 or fewer automobiles;

c. The construction of a parking lot designed for 20 or fewer automobiles;

d. Any landfill or excavation of 500 cubic yards or less throughout the total lifetime of the fill or excavation; and any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulations thereunder;

e. Pursuant to MICC 19.07.110(B)(3), projects in a shoreline area that involve alterations under 250 cubic yards outside the building footprint shall be exempt from review under the State Environmental Policy Act.

K. Environmental Checklist.

1. A completed environmental checklist (or a copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this section; except, a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency.

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

3. The city may complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

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

b. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.

L. Threshold Determination. The responsible official shall make the threshold determination and issue a determination of nonsignificance (DNS) or significance (DS). The responsible official shall make such threshold determination in accordance with the procedures of Chapter 197-11 WAC, Part 3, as adopted by this section. The responsible official shall notify the applicant, the lead city department, and (where a permit is involved) the permit-issuing city department of the threshold determination. The decision of the responsible official to issue a determination of significance shall not be appealable. The decision of the responsible official to issue a determination of nonsignificance shall be appealable pursuant to subsection T of this section.

M. Early Notice of Threshold Determination and Mitigated DNS.

1. As provided in this part of 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.

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

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

b. Precede the city’s actual threshold determination for the proposal.

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

a. Be written;

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

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

4. The city’s written response under subsection (M)(2) 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 city to consider the clarifications or changes in its threshold determination.

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

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

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

b. If the city indicated areas of concern, but did not indicate specific mitigation measures, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

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

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

7. A proposal shall not be considered changed or clarified to permit the issuance of a mitigated DNS under WAC 197-11-350 unless all license applications for the proposal are revised to conform to the changes or other binding commitments made.

8. If a mitigated DNS is issued, the aspects of the proposal that allowed a mitigated DNS to be issued shall be included in any decision or recommendation of approval of the action. Mitigation measures incorporated into 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.

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

10. If at any time the proposal (including associated mitigating measures) is substantially changed, the responsible official shall reevaluate the threshold determination and, if necessary, withdraw the mitigated DNS and issue a DS. Any questions regarding whether or not a change is substantial shall be resolved by the responsible official.

N. Environmental Impact Statements.

1. An environmental impact statement shall be required on any proposal determined to be a major action having a probable significant, adverse environmental impact. If it is determined that an environmental impact statement is required, the responsible official shall notify the applicant or proposal sponsor, the lead city department and (where a permit is involved) the department responsible for issuing the permit. The responsible official shall arrange for a meeting with the applicant or proposal sponsor to schedule necessary events and give any guidance necessary in the preparation of the EIS.

2. For private proposals, an EIS shall be prepared by a private applicant or agent thereof or by the city. For city proposals, the EIS shall be prepared by a consultant or by city staff. In all cases, the method of preparation and the selection of the consultant shall be subject to the approval of the responsible official. The responsible official shall assure that the EIS is prepared in a responsible and professional manner and with appropriate methodology and consistent with SEPA rules. The responsible official shall also direct the areas of research and examination to be undertaken as a result of the scoping process, as well as the organization of the resulting document. The responsible official may retain the services of a consultant to review all or portions of EIS prepared by an applicant, the applicant’s agent, or the city, at the applicant’s expense. Services rendered by the responsible official and other city staff shall be subject to collection of fees as described in the city’s officially adopted land use and planning fee schedule.

3. The responsible official will coordinate any predraft consultation procedures and scoping procedures so that the consultant preparing the EIS immediately receives all substantive information submitted by consulted agencies or through the scoping process. The responsible official shall also attempt to obtain any information needed by the consultant preparing the EIS which is on file with another agency or federal agency.

4. An environmental impact statement is required to analyze those probable adverse environmental impacts which are significant. Beneficial environmental impacts may be discussed. The responsible official shall consult with agencies, affected tribes and the public to identify such impacts and limit the scope of an environmental impact statement in accordance with the procedures set forth in subsection (N)(5) of this section. The purpose of the scoping process is to narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives, including mitigation measures.

5. Procedures for Scoping.

a. The responsible official shall consult with agencies and the public to limit the scope of an environmental impact statement by any or all of the following means. The specific method to be followed shall be determined on a proposal-by-proposal basis by the responsible official, but at a minimum shall include the following:

i. The responsible official shall give notice that an EIS is to be prepared, which notice shall provide that agencies, affected tribes and the public may submit written comments to identify significant impacts and reasonable alternatives and limit the scope of the EIS. Comments must be submitted not later than 21 days from the date of issuance of the declaration of significance. Additionally, notice may be sent to any community groups known by the responsible official to have a possible interest in the proposal. Notice of the intent to prepare an EIS and the opportunity for commenting on the scope thereof may be sent with other public notices concerning the project.

ii. Additionally, the responsible official may conduct a meeting to provide the opportunity for oral comment on the scope of the EIS. Notice of such meeting shall be published in a newspaper of general circulation at least five days prior to the date of the meeting. The scoping meeting may be combined with other meetings or hearings concerning the proposal.

b. The appendix to the EIS shall include an identification of the issues raised during the scoping process and whether those issues have or have not been determined significant for analysis in the EIS. All written comments regarding the scope of the EIS shall be included in the proposal file.

c. The public and agency consulting process regarding the scope of the EIS shall normally occur within 30 days after the declaration of significance is issued, unless the responsible official and the applicant agree on a later date.

d. EIS preparation may begin during scoping.

6. The following additional elements may, at the option of the responsible official, be considered part of the environment for the purpose of EIS content, but do not add to the criteria for the threshold determinations or perform any other function or purpose under these rules:

a. Economy;

b. Social policy analysis;

c. Cost-benefit analysis.

7. When a public hearing is held under WAC 197-11-535(2), such hearing shall be held before the responsible official.

O. Internal Circulation of Environmental Documents. Environmental documents shall be transmitted to decisionmakers and advisory bodies prior to their taking official action on proposals subject to SEPA.

P. Emergencies. The responsible official shall designate when an action constitutes an emergency under WAC 197-11-880.

Q. Public Notice.

1. Whenever the city issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the city shall give public notice of the DNS or DS by publishing notice in the city’s permit information bulletin.

2. 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 and in the public notice.

3. Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by:

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

b. Publishing notice in the city’s permit information bulletin.

4. Whenever an EIS hearing is required, the hearing shall be combined with the hearing on the underlying action and notice shall be provided in the manner specified in MICC 19.15.020.

5. The city shall integrate the public notice required under this section with existing notice procedures for the city’s nonexempt permit(s) or approval(s) required for the proposal.

6. The responsible official may also elect to give notice by one or more of the other methods specified in WAC 197-11-510.

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

R. Fees.

1. Environmental Checklist. The city shall establish a fee for review of an environmental checklist performed by the city when the city is the lead agency. The fee shall be identified in the city’s officially adopted land use and planning fee schedule, and collected prior to undertaking a threshold determination.

2. Environmental Impact Statements. For all proposals when the city is the lead agency and the responsible official determines that an EIS is required, the applicant shall be charged a fee for the administrative costs of supervision and preparation of the draft and final EISs. This fee shall be identified in the city’s officially adopted land use and planning fee schedule, and collected prior to the initiation of work on the draft EIS.

3. For private proposals, the cost of retaining consultants for assistance in EIS preparation shall be borne by the applicant whether the consultant is retained directly by the applicant or by the city.

4. Consultant Agency Fees. No fees shall be collected by the city for performing its duty as a consultant agency.

5. Document Fees. The city may charge any person for copies of any documents prepared pursuant to the requirements of this section and for mailing thereof, in a manner provided by Chapter 42.17 RCW; provided, no charge shall be levied for circulation of documents as required by this section to other agencies.

S. Authority to Condition or Deny Proposals (Substantive Authority).

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

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

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

b. Such conditions are in writing; and

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

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

e. Such conditions are based on one or more policies in subsection (S)(4) of this section and cited in the license or other decision document.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c. The city adopts by reference the policies in the following city codes, ordinances, resolutions, and plans, as presently adopted or hereafter amended:

i. The comprehensive plan of the city;

ii. The development code of the city;

iii. The policies of the Mercer Island environmental procedures code, including the policies and objectives of SEPA (Chapter 43.21C RCW) as adopted by the city;

iv. The parks and open space plan of the city;

v. The community facilities plan of the city;

vi. The design commission, Ordinance No. 297, and the design guidelines, Ordinance No. 491, of the city;

vii. The city’s arterial plan, Ordinance No. 404;

viii. The six-year comprehensive street improvement program;

ix. 1976 memorandum agreement regarding I-90, signed by the cities of Mercer Island, Bellevue and Seattle, and the Washington State Department of Transportation;

x. Model Traffic Ordinance, Chapter 10.98 MICC;

xi. Street improvement and maintenance guidelines, approved September 13, 1982;

xii. Sewer rates and regulations, Chapter 15.06 MICC;

xiii. Water system, Chapter 15.12 MICC;

xiv. Minimum fire flow requirements, Resolution No. 778;

xv. Comprehensive city water plan.

5. The responsibility for enforcing conditions under SEPA rests with the city department or official responsible for enforcing the decision on the underlying action.

6. This part of this section shall not be construed as a limitation on the authority of the city to approve, deny or condition a proposal for reasons based upon other statutes, ordinances or regulations.

T. Administrative Appeals.

1. Except for SEPA procedural and substantive decisions related to permits, deviations and variances issued by the code official or hearing examiner under the shoreline management provisions or any legislative actions taken by the city council, the following shall be appealable to the hearing examiner under this section:

a. The decision to issue a determination of nonsignificance rather than to require an EIS;

b. Mitigation measures and conditions that are required as part of a determination of nonsignificance;

c. The adequacy of an FEIS or an SEIS;

d. Any conditions or denials of the proposed action under the authority of SEPA.

2. How to Appeal. The appeal must be consolidated with any appeal that is filed on the proposal or action, and must conform to the requirements of MICC 19.15.020(J), Permit Review Procedures. The appeal may also contain whatever supplemental information the appellant wishes to include.

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

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript.

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

5. The city shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal.

U. Notice – Statute of Limitations.

1. The applicant for or proponent of an action of the city, when the action is one the city is proposing, may publish notice of action pursuant to RCW 43.21C.080 for any action.

2. The form of the notice shall be substantially in the form and manner set forth in RCW 43.21C.080. The notice may be published by the city for city projects or the applicant or proponent for private projects.

3. If there is a time period for appealing the underlying city action to court, the city shall give notice stating the date and place for commencing an appeal of the underlying action and an appeal under Chapter 43.21C RCW, the State Environmental Policy Act. Notice shall be given by mailing notice to parties of record to the underlying action and may also be given by publication in a newspaper of general circulation. (Ord. 17C-12 § 6; Ord. 10C-06 § 1; Ord. 08C-01 § 3; Ord. 05C-12 § 6; Ord. 03C-11 §§ 1, 2, 3; Ord. 99C-13 § 1. Formerly 19.07.100).