Chapter 14.04 ENVIRONMENTAL POLICY

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

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

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

C. "Environmental assessment" means a detailed technical report on one or more elements of the environment as listed in the environmental checklist where that report is prepared by person(s) with expertise in that particular field. Environmental assessments may include, but are not limited to, geotechnical reports, hydrological reports and traffic studies.

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

E. "SEPA rules" means WAC Chapter 197-11 adopted by the Department of Ecology.

(Ord. 7109 §2, 2017; Ord. 4563 §3, 1984).

14.04.050 Additional timing considerations

In addition to timing requirements adopted by reference under OMC 14.04.020, and those set forth in OMC 18.70.060, the following provisions shall apply:

A. When a notice of application is required or provided regarding the subject action, a determination of nonsignificance or mitigated determination of nonsignificance shall not be issued prior to expiration of the public comment period.

B. After being issued, the DNS, MDNS or EIS for the proposal shall accompany the city’s staff recommendation to any appropriate advisory or decision-making body, or official. OMC 18.70.120 and the current edition of the International Building Code 105.3.2 notwithstanding, no complete project permit application shall expire during the period between issuance of a determination of significance and issuance of the final environmental impact statement so long as the statement is prepared within the time periods specified by this Chapter, Washington Administrative Code Chapter 197-11 and the State Environmental Policy Act. Instead, such application review periods shall be tolled during such period.

(Ord. 7109 §2, 2017; Ord. 5594 §19, 1996; Ord. 5570 §3, 1995; Ord. 4563 §5, 1984).

14.04.060 Use of exemptions

A. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The city shall not require completion of an environmental checklist for an exempt proposal.

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

(Ord. 7109 §2, 2017; Ord. 4563 §6, 1984).

14.04.065 Categorical Exemptions

Pursuant to WAC 197-11-800(1)(c) and in addition to the provisions of WAC 197-11-800(1)(b), the following types of construction shall be exempt, except when undertaken wholly or partly on lands covered by water:

A. The construction or location of any residential structures of nine units or less;

B. The construction of an office, school, commercial, recreational, service or storage building with 8,000 square feet or less of gross floor area, and with associated parking facilities designed for thirty automobiles or less;

C. The construction of a parking lot designed for thirty automobiles or less;

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. Development within the Downtown Infill Exemption Allowance Area designated under RCW 43.21C.229 for construction of the following types of development within the boundary shown on the map below:

1. residential developments

2. non-retail commercial developments of 65,000 square feet or less; and

3. mixed use developments

For the purposes of Subsection E:

1. “Infill” shall mean any development that meets Subsection E of section 14.04.065.

2. “Retail” shall be construed liberally to include sales of products produced, assembled or otherwise created on-site or off-site.

3. “Mixed use” shall mean any development that includes two or more permitted or conditional uses on the same site, in one or more buildings.

F. To be considered for the Downtown Infill Exemption Allowance, the proposed development must:

1. not cause the area shown in the map above to exceed the density or intensity called for in the Comprehensive Plan, or be part of a series of proposals that would do so; and

2. be consistent with all requirements of the subject zoning district and all other applicable provisions of the Olympia Municipal Code and other local, state, and federal laws.

G. Developments that qualify for the Downtown Infill Exemption Allowance are still subject to Chapter 15.20 OMC, Transportation Concurrency.

H. The Director may condition development proposals that otherwise qualify for the Downtown Infill Exemption Allowance to:

1. incorporate site design measures that preserve the following landmark views identified in the Olympia Downtown Strategy on April 25, 2017:

a. West Bay Park to Mt Rainier

b. East Bay Overlook to the Capitol Dome

c. Deschutes Parkway to Mt Rainier

2. provide for public routes or trails to access the shoreline under the Shoreline Master Program or as provided in the Regional Trails Plan; parks, Arts and Recreation Master Plan, or Downtown Strategy.

(Ord. 7109 §2, 2017; Ord. 6213 §1, 2002).

14.04.070 Lead agency determination and responsibilities

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

B. If the city or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within a fifteen-day (15) time period. Any such petition on behalf of the city may be initiated by the responsible official.

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

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

(Ord. 7109 §2, 2017; Ord. 4563 §7, 1984).

14.04.080 Environmental checklist

A. 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 chapter; 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. The city shall use the environmental checklist to determine the lead agency.

B. Except as provided in subsection C, the city will require the applicant to complete the environmental checklist for private proposals, providing assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.

C. The city may complete all or a part of the environmental checklist for a private proposal with its own staff if either of the following exist:

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

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

(Ord. 7109 §2, 2017; Ord. 4563 §8, 1984).

14.04.090 Mitigated determination of nonsignificance

A. As provided in this section and in WAC 197-11-350 and WAC 197-11-355, the responsible official may issue a determination of nonsignificance (DNS) based on conditions attached to the proposal by the responsible official or on changes to, or clarification of, the proposal made by the applicant.

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

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

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

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

1. Be written;

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

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

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

E. When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the city shall base its threshold determination on the changed or clarified proposal:

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

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

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

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

F. A mitigated DNS issued under WAC 197-11-340(2), requires a 14 day comment period and public notice. However, a mitigated DNS may be issued under WAC 197-11-340(1) if intended only to minimize adverse impacts and not to eliminate the requirements for an EIS.

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

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

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

(Ord. 7109 §2, 2017; Ord. 6274 §1, 2003; Ord. 5570 §3, 1995; Ord. 4563 §9, 1984).

14.04.100 Environmental impact statement –Preparation

A. Preparation of draft and final EIS and SEIS’s is the responsibility of the planning department under the direction of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this Chapter and WAC Chapter 197-11.

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

C. The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this Chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute).

D. A draft of any required environmental impact statement should be prepared and issued within 365 calendar days of issuance of the determination of significance. Draft environmental impact statements shall be reviewed and a final environmental impact statement issued within those time periods prescribed by WAC 197-11-455 and WAC 197-11-460.

(Ord. 7109 §2, 2017; Ord. 5570 §4, 1995; Ord. 4563 §10, 1984).

14.04.110 Environmental impact statement –Additional elements

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determination or perform any other function or purpose under this chapter:

A. Economic impacts;

B. Cultural factors;

C. Social policy analysis;

D. Impacts upon neighborhood character.

(Ord. 7109 §2, 2017; Ord. 4563 §11, 1984).

14.04.120 Public notice

A. Whenever the city issues a DNS under WAC 197-11-340(2) or WAC 197-11-355 or a DS under WAC 197-11-360(3), the city shall give public notice as follows:

1. If a public hearing has been scheduled on the subject action, notice of the threshold determination may be combined with notice of such hearing. The city shall give notice of a threshold determination using the procedures in OMC 18.70.

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.

B. Whenever the city issues a draft EIS under WAC 197-11-455(5) or a supplemental EIS under WAC 197-11-620, notice of the availability of those documents shall be given by (1) indicating the availability of the DEIS in any public notice required for a nonexempt license; and (2) the methods noted in subsection A of this section.

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

D. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at the applicant’s expense.

(Ord. 7109 §2, 2017; Ord. 5570 §3, 1995; Ord. 4563 §12, 1984).

14.04.130 Designation of official to perform consulted agency responsibilities for the city

A. The planning director shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping, or reviewing a draft EIS.

B. This person shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city.

(Ord. 7109 §2, 2017; Ord. 4563 §13, 1984).

14.04.140 Designation of responsible official

A. For those proposals for which the city is the lead agency, the responsible official shall be the planning director or designee.

B. For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required EIS, and perform any other functions assigned to the "lead agency" or "responsible official" by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

(Ord. 7109 §2, 2017; Ord. 4563 §14, 1984).

14.04.150 Substantive authority

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

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

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

2. Such conditions are in writing;

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

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

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

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

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

2. A finding is made that there are not reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact;

3. The denial is based on one or more policies identified in subsection D of this section and identified in writing in the decision document.

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

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

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

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

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

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

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

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

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

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

3. The following plans, policies regulations, and all amendments thereto, are designated as potential bases for the exercise of the City’s substantive authority under SEPA:

a. RCW Chapter 43.21C, State Environmental Policy;

b. Comprehensive Plan;

c. Wastewater Management Plan;

d. Water Resources Management Plan;

e. Water System Plan;

f. Storm and Surface Water Plan;

g. Parks, Arts, and Recreation Master Plan;

h. Shoreline Master Program;

i. Regional Transportation Plan;

j. Olympia Municipal Code;

k. Engineering Design and Development Standards;

l. Capital Facility Plan;

m. Downtown Strategy;

E. The legislative appeals authorized by RCW 43.21C.060 are eliminated from this chapter.

(Ord. 7109 §2, 2017; Ord. 4563 §15, 1984).

14.04.155 Hearing Examiner Authority

In addition to the authority and power to modify mitigation measures pursuant to appeal, the Hearing Examiner is hereby authorized to modify such mitigating conditions or measures as appropriate when no administrative appeal opportunity was provided pursuant to OMC 14.04.160 or when deemed necessary by the Examiner to ensure consistency with any decision rendered by the Examiner on the underlying application or permit.

(Ord. 7109 §2, 2017; Ord. 5570 §3, 1995)

14.04.160 Appeals

A. The following administrative appeal procedures are established under RCW 43.21C.075, WAC 197-11-680, and chapter 36.70B RCW:

1. Any agency or person who may be aggrieved by an action may appeal to the Hearing Examiner the environmental review officers conditioning, lack of conditioning or denial of an action pursuant to WAC Chapter 197-11.

2. The responsible official’s initial decision to require preparation of an environmental impact statement, i.e., to issue a determination of significance, is subject to an interlocutory administrative appeal upon notice of such initial decision and only to such appeal. Notice of such decision shall be provided as set forth in Chapter 18.70 OMC. Failure to appeal such determination within 14 calendar days of notice of such initial decision shall constitute a waiver of any claim of error.

3. All appeals shall be in writing, be signed by the appellant, be accompanied by the appropriate filing fee, and set forth the specific basis for such appeal, error alleged and relief requested. Any appeal must be filed in accordance with OMC 18.70.170 – Appeals. Where there is an underlying governmental action requiring review by the Hearing Examiner, any appeal and the action shall be considered together. Except for threshold determinations issued under the optional DNS process, an appeal period shall conclude simultaneously with an underlying permit decision.

4. For any appeal under this subsection, the city shall keep a record of the appeal proceeding which shall consist of the following:

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript of any hearing.

5. Any procedural determination by the city’s responsible official shall be given substantial weight in any appeal proceeding.

6. See OMC 18.70.170 for additional requirements.

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

(Ord. 7321 §1, 2022; Ord. 7109 §2, 2017; Ord. 6967 §3, 2015; Ord. 6274 §2, 2003; Ord. 5594 §20, 1996; Ord. 5570 §3, 1995; Ord. 5517 §5, 1995; Ord. 4563 §16, 1984).

14.04.170 Environmentally sensitive areas

A. If the city designates environmentally sensitive areas under the standards of WAC 197-11-908, it shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the responsible official and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.

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

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

(Ord. 7109 §2, 2017; Ord. 4563 §17, 1984).

14.04.180 Responsibilities of agencies--SEPA public information

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

(Ord. 7109 §2, 2017; Ord. 4563 §18, 1984).

14.04.190 Fees

The city shall require and collect fees as established by ordinance of the City Council for its activities in accordance with the provisions of this chapter:

A. Threshold Determination. A fee shall be collected for every environmental checklist the city will review when it is lead agency. The time periods provided by this chapter for making a threshold determination shall not begin to run until the accompanying application is deemed complete and all fees are paid.

B. Environmental Impact Statement (EIS).

1. When the city is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be prepared by employees of the city, the city may charge and collect a reasonable fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

2. When the city is the lead agency for a proposal and the applicant is preparing an EIS, the city shall collect a fee to cover the cost of reviewing the EIS. The fees are set forth in the fee schedule as adopted and hereafter amended by the city, and shall reflect the actual costs, including all staff time spent in the review. The city shall require the applicant to post a cash deposit for the amount of the estimated total cost of the review prior to initiation of review; however, this is not necessary until after the scoping process is completed.

3. The responsible official may determine that the city will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the city and may bill such costs and expenses directly to the applicant. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals. The city shall require the applicant to post a cash deposit for the amount of the estimated costs prior to initiation of the project.

4. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subdivisions 1, 2 or 3 of this subsection which remain after incurred costs are paid.

C. Supplemental Studies or Information. When the city requires supplemental information or studies, a reasonable fee may be charged and collected from the applicant to cover the costs incurred by the city in reviewing such information. The fee shall be set forth in the fee schedule as adopted and hereafter amended by the city.

D. The city may collect a reasonable fee from an applicant to cover the costs of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

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

F. The city may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by RCW Chapter 42.7.

(Ord. 7109 §2, 2017; Ord. 5570 §3 1995; Ord. 4563 §19, 1984).

14.04.200 Notice –Statute of limitations

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

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city, applicant or proponent pursuant to RCW 43.21C.080.

(Ord. 7109 §2, 2017; Ord. 4563 §20, 1984).

14.04.210 Severability

If any provision of this chapter or its application to any person is held invalid, the remainder of this chapter, or the application of the provision to other persons or circumstances, shall not be affected.

(Ord. 7109 §2, 2017).