Chapter 18.64
CATEGORICAL EXEMPTIONS AND THRESHOLD DETERMINATIONS
Sections:
18.64.010 Purpose of this chapter and adoption by reference.
18.64.020 Flexible thresholds for categorical exemptions.
18.64.040 Environmental checklist.
18.64.050 Mitigated determination of nonsignificance (DNS).
18.64.010 Purpose of this chapter and adoption by reference.
This chapter contains the rules for deciding whether a proposal has a probable significant adverse environmental impact requiring an environmental impact statement (EIS) to be prepared. This chapter also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections of the SEPA rules by reference, as supplemented in this part:
WAC
197-11-300 Purpose of this part, relating to 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 (DNS).
197-11-350 Mitigated DNS.
197-11-360 Determination of significance (DS)/initiation of scoping.
197-11-390 Effect of threshold determination.
(Ord. 548 § 2 (Exh. D) (part), 2007)
18.64.020 Flexible thresholds for categorical exemptions.
A. The city of Rainier establishes the following exempt levels for minor new construction not occurring in a critical area or associated buffer that are less than:
1. For residential dwelling units in WAC 197-11-800(1)(b)(i): up to four dwelling units.
2. For agricultural structures in WAC 197-11-800(1)(b)(ii): those containing up to ten thousand (10,000) square feet.
3. For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(b)(iii): up to four thousand (4,000) square feet and up to twenty (20) parking spaces.
4. For parking lots in WAC 197-11-800(1)(b)(iv): up to twenty (20) parking spaces.
5. For landfills and excavations in WAC 197-11-800(1)(b)(v): up to one hundred (100) cubic yards, using the following lot size sliding scale:
a. Up to one-half-acre lot = twenty-five (25) cubic yards.
b. One-half- to one-acre lot = fifty (50) cubic yards.
c. One- to two-acre lot = seventy-five (75) cubic yards.
d. Over two-acre lot = one hundred (100) cubic yards.
B.1. In addition to the exempt levels established in subsection (A) of this section, the following proposed actions shall be categorically exempt from threshold determination and EIS requirements subject to the rules and limitations on categorical exemptions contained in WAC 197-11-305: WAC 197-11-800(1)(b) (as modified above).
2. Other Minor New Construction. The following types of construction shall be exempt except where undertaken wholly or in part on lands covered by water (unless specifically exempted in this subsection); the exemptions provided by this section shall apply to all licenses required to undertake the construction in question, except where a rezone or any license governing emissions to the air or discharges to water is required:
a. The construction or designation of bus stops, loading zones, shelters, access facilities and pull-out lanes for taxicabs, transit and school vehicles.
b. The construction and/or installation of commercial on-premises signs, and public signs and signals.
c. The construction or installation of minor road and street improvements such as pavement marking, freeway surveillance and control systems, railroad protective devices (not including grade-separated crossings), grooving, glare screen, safety barriers, energy attenuators, transportation corridor landscaping (including the application of Washington State Department of Agriculture approved herbicides by licensed personnel for right-of-way weed control as long as this is not within watersheds controlled for the purpose of drinking water quality in accordance with WAC 248-54-660), temporary traffic controls and detours, correction of substandard curves and intersections within existing rights-of-way, widening of a highway by less than a single lane width where capacity is not significantly increased and no new right-of-way is required, adding auxiliary lanes for localized purposes (weaving, climbing, speed change, etc.), where capacity is not significantly increased and no new right-of-way is required, channelization and elimination of sight restrictions at intersections, street lighting, guard rails and barricade installation, installation of catch basins and culverts, and reconstruction of existing roadbed (existing curb-to-curb in urban locations), including adding or widening of shoulders, addition of bicycle lanes, paths and facilities, and pedestrian walks and paths, but not including additional automobile lanes.
d. Grading, excavating, filling, septic tank installations, and landscaping necessary for any building or facility exempted by subsections (B)(2)(a) and (b) of this section, as well as fencing and the construction of small structures and minor facilities accessory thereto.
e. Additions or modifications to or replacement of any building or facility exempted by subsections (B)(2)(a) and (b) of this section when such addition, modification or replacement will not change the character of the building or facility in a way that would remove it from an exempt class.
f. The demolition of any structure or facility, the construction of which would be exempted by subsections (B)(2)(a) and (b) of this section, except for structures or facilities with recognized historical significance.
g. The installation of impervious underground tanks, having a capacity of ten thousand (10,000) gallons or less.
h. The vacation of streets or roads.
i. The installation of hydrological measuring devices, regardless of whether or not on lands covered by water.
j. The installation of any property, boundary or survey marker, other than fences, regardless of whether or not on lands covered by water.
3. Repair, Remodeling and Maintenance Activities. The following activities shall be categorically exempt: the repair, remodeling, maintenance, or minor alteration of existing private or public structures, facilities or equipment, including utilities, involving no material expansions or changes in use beyond that previously existing; except that, where undertaken wholly or in part on lands covered by water, only minor repair or replacement of structures may be exempt (examples include repair or replacement of piling, ramps, floats, or mooring buoys, or minor repair, alteration, or maintenance of docks). The following maintenance activities shall not be considered exempt under this subsection:
a. Dredging;
b. Reconstruction/maintenance of groins and similar shoreline protection structures; or
c. Replacement of utility cables that must be buried under the surface of the bedlands.
Repair/rebuilding of major dams, dikes, and reservoirs shall also not be considered exempt under this subsection.
4. Water Rights. Appropriations of one cubic foot per second or less of surface water, or of two thousand two hundred fifty (2,250) gallons per minute or less of groundwater, for any purpose. The exemption covers not only the permit to appropriate water, but also any hydraulics permit, shoreline permit or building permit required for a normal diversion or intake structure, well and pumphouse reasonably necessary to accomplish the exempted appropriation, and including any activities relating to construction of a distribution system solely for any exempted appropriation.
5. Purchase or Sale of Real Property. The following real property transactions by an agency shall be exempt:
a. The purchase or acquisition of any right to real property.
b. The sale, transfer or exchange of any publicly owned real property, but only if the property is not subject to an authorized public use.
c. The lease of real property when the use of the property for the term of the lease will remain essentially the same as the existing use, or when the use under the lease is otherwise exempted by this chapter.
6. Minor Land Use Decisions. The following land use decisions shall be exempt:
a. Except upon lands covered by water, the approval of short plats or short subdivisions pursuant to the procedures required by RCW 58.17.060, but not including further short subdivisions or short platting within a plat or subdivision previously exempted under this subsection.
b. Granting of variances based on special circumstances, not including economic hardship, applicable to the subject property, such as size, shape, topography, location or surroundings and not resulting in any change in land use or density.
c. Classifications of land for current use taxation under Chapter 84.34 RCW, and classification and grading of forest land under Chapter 84.33 RCW.
7. Open Burning. Open burning and the issuance of any license for open burning shall be exempt. The adoption of plans, programs, objectives or regulations by any agency incorporating general standards respecting open burning shall not be exempt.
8. Clean Air Act. The granting of variances under RCW 70.94.181 extending applicable air pollution control requirements for one year or less shall be exempt.
9. Water Quality Certifications. The granting or denial of water quality certifications under the federal Clean Water Act (federal Water Pollution Control Act amendments of 1972, 33 U.S.C. 1341) shall be exempt.
10. Activities of the State Legislature. All actions of the State Legislature are exempted. This subsection does not exempt the proposing of legislation by an agency (WAC 197-11-704).
11. Judicial Activity. The following shall be exempt:
a. All adjudicatory actions of the judicial branch.
b. Any quasi-judicial action of any agency if such action consists of the review of a prior administrative or legislative decision. Decisions resulting from contested cases or other hearing processes conducted prior to the first decision on a proposal or upon any application for a rezone, conditional use permit or other similar permit not otherwise exempted by this chapter are not exempted by this subsection.
12. Enforcement and Inspections. The following enforcement and inspection activities shall be exempt:
a. All actions, including administrative orders and penalties, undertaken to enforce a statute, regulation, ordinance, resolution or prior decision. No license shall be considered exempt by virtue of this subsection; nor shall the adoption of any ordinance, regulation or resolution be considered exempt by virtue of this subsection.
b. All inspections conducted by an agency of either private or public property for any purpose.
c. All activities of fire departments and law enforcement agencies except physical construction activity.
d. Any action undertaken by an agency to abate a nuisance or to abate, remove or otherwise cure any hazard to public health or safety. The application of pesticides and chemicals is not exempted by this subsection but may be exempted elsewhere in these guidelines. No license or adoption of any ordinance, regulation or resolution shall be considered exempt by virtue of this subsection.
e. Any suspension or revocation of a license for any purpose.
13. Business and Other Regulatory Licenses. The following business and other regulatory licenses are exempt:
a. All licenses to undertake an occupation, trade or profession.
b. All licenses required under electrical, fire, plumbing, heating, mechanical, and safety codes and regulations, but not including building permits.
c. All licenses to operate or engage in amusement devices and rides and entertainment activities, including but not limited to cabarets, carnivals, circuses and other traveling shows, dances, music machines, golf courses, and theaters, including approval of the use of public facilities for temporary civic celebrations, but not including licenses or permits required for permanent construction of any of the above.
d. All licenses to operate or engage in charitable or retail sales and service activities, including but not limited to peddlers, solicitors, secondhand shops, pawnbrokers, vehicle and housing rental agencies, tobacco sellers, close-out and special sales, fireworks, massage parlors, public garages and parking lots, and used automobile dealers.
e. All licenses for private security services, including but not limited to detective agencies, merchant and/or residential patrol agencies, burglar and/or fire alarm dealers, guard dogs, locksmiths, and bail bond services.
f. All licenses for vehicles for-hire and other vehicle-related activities, including but not limited to taxicabs, ambulances, and tow trucks; provided, that regulation of common carriers by the utilities and transportation commission shall not be considered exempt under this subsection.
g. All licenses for food or drink services, sales, and distribution, including but not limited to restaurants, liquor, and meat.
h. All animal control licenses, including but not limited to pets, kennels, and pet shops. Establishment or construction of such a facility shall not be considered exempt by this subsection.
i. The renewal or reissuance of a license regulating any present activity or structure so long as no material changes are involved.
14. Activities of Agencies. The following administrative, fiscal and personnel activities of agencies shall be exempt:
a. The procurement and distribution of general supplies, equipment and services authorized or necessitated by previously approved functions or programs.
b. The assessment and collection of taxes.
c. The adoption of all budgets and agency requests for appropriation; provided, that if such adoption includes a final agency decision to undertake a major action, that portion of the budget is not exempted by this subsection.
d. The borrowing of funds, issuance of bonds, or applying for a grant and related financing agreements and approvals.
e. The review and payment of vouchers and claims.
f. The establishment and collection of liens and service billings.
g. All personnel actions, including hiring, terminations, appointments, promotions, allocations of positions, and expansions or reductions in force.
h. All agency organization, reorganization, internal operational planning or coordination of plans or functions.
i. Adoptions or approvals of utility, transportation and solid waste disposal rates.
j. The activities of school districts pursuant to desegregation plans or programs; however, construction of real property transactions or the adoption of any policy, plan or program for such construction of real property transaction shall not be considered exempt under this subsection.
15. Financial Assistance Grants. The approval of grants or loans by one agency to another shall be exempt, although an agency may at its option require compliance with SEPA prior to making a grant or loan for design or construction of a project. This exemption includes agencies taking nonproject actions that are necessary to apply for federal or other financial assistance.
16. Local Improvement Districts. The formation of local improvement districts, unless such formation constitutes a final agency decision to undertake construction of a structure or facility not exempted under WAC 197-11-800 and 197-11-880.
17. Information Collection and Research. Basic data collection, research, resource evaluation, requests for proposals (RFPs), and the conceptual planning of proposals shall be exempt. These may be strictly for information-gathering, or as part of a study leading to a proposal that has not yet been approved, adopted or funded; this exemption does not include any agency action that commits the agency to proceed with such a proposal. (Also see WAC 197-11-070.)
18. Acceptance of Filings. The acceptance by an agency of any document or thing required or authorized by law to be filed with the agency and for which the agency has no discretionary power to refuse acceptance shall be exempt. No license shall be considered exempt by virtue of this subsection.
19. Procedural Actions. The proposal or adoption of legislation, rules, regulations, resolutions or ordinances, or of any plan or program relating solely to governmental procedures, and containing no substantive standards respecting use or modification of the environment shall be exempt. Agency SEPA procedures shall be exempt.
20. Building Codes. The adoption by ordinance of all codes as required by the State Building Code Act (Chapter 19.27 RCW).
21. Adoption of Noise Ordinances. The adoption by counties/cities of resolutions, ordinances, rules or regulations concerned with the control of noise which do not differ from regulations adopted by the Department of Ecology under Chapter 70.107 RCW. When a county/city proposes a noise resolution, ordinance, rule or regulation, a portion of which differs from the applicable state regulations (and thus requires approval of the Department of Ecology under RCW 70.107.060(4)), SEPA compliance may be limited to those items which differ from state regulations.
22. Review and Comment Actions. Any activity where one agency reviews or comments upon the actions of another agency or another department within an agency shall be exempt.
23. Utilities. The utility-related actions listed below shall be exempt, except for installation, construction, or alteration on lands covered by water. The exemption includes installation and construction, relocation when required by other governmental bodies, repair, replacement, maintenance, operation or alteration that does not change the action from an exempt class.
a. All communications lines, including cable TV, but not including communication towers or relay stations.
b. All stormwater, water and sewer facilities, lines, equipment, hookups or appurtenances including, utilizing or related to lines eight inches or less in diameter.
c. All electric facilities, lines, equipment or appurtenances, not including substations, with an associated voltage of fifty-five thousand (55,000) volts or less; and the overbuilding of existing distribution lines (fifty-five thousand (55,000) volts or less) with transmission lines (more than fifty-five thousand (55,000) volts); and the undergrounding of all electric facilities, lines, equipment or appurtenances.
d. All natural gas distribution (as opposed to transmission) lines and necessary appurtenant facilities and hookups.
e. All developments within the confines of any existing electric substation, reservoir, pump station or well; provided, that additional appropriations of water are not exempted by this subsection.
f. Periodic use of chemical or mechanical means to maintain a utility or transportation right-of-way in its design condition; provided, that chemicals used are approved by the Washington State Department of Agriculture and applied by licensed personnel. This exemption shall not apply to the use of chemicals within watersheds that are controlled for the purpose of drinking water quality in accordance with WAC 248-54-660.
g. All grants of rights-of-way by agencies to utilities for use for distribution (as opposed to transmission) purposes.
h. All grants of franchises by agencies to utilities.
i. All disposals of rights-of-way by utilities.
24. Natural Resources Management. In addition to the other exemptions contained in this section, the following natural resources management activities shall be exempt:
a. Issuance of new grazing leases covering a section of land or less; and issuance of all grazing leases for land that has been subject to a grazing lease within the previous ten (10) years.
b. Licenses or approvals to remove firewood.
c. Issuance of agricultural leases covering one hundred sixty (160) contiguous acres or less.
d. Issuance of leases for Christmas tree harvesting or brush picking.
e. Issuance of leases for school sites.
f. Issuance of leases for, and placement of, mooring buoys designed to serve pleasure craft.
g. Development of recreational sites not specifically designed for all-terrain vehicles and not including more than twelve (12) campsites.
h. Periodic use of chemical or mechanical means to maintain public park and recreational land; provided, that chemicals used are approved by the Washington State Department of Agriculture and applied by licensed personnel. This exemption shall not apply to the use of chemicals within watersheds that are controlled for the purpose of drinking water quality in accordance with WAC 248-54-660.
i. Issuance of rights-of-way, easements and use permits to use existing roads in nonresidential areas.
j. Establishment of natural area preserves to be used for scientific research and education and for the protection of rare flora and fauna, under the procedures of Chapter 79.70 RCW.
25. Personal Wireless Service Facilities.
a. The siting of personal wireless service facilities is exempt if the facility:
i. Is a microcell and is to be attached to an existing structure that is not a residence or school and does not contain a residence or a school;
ii. Includes personal wireless service antennas, other than a microcell, and is to be attached to an existing structure (that may be an existing tower) that is not a residence or school and does not contain a residence or school, and the existing structure to which it is to be attached is located in a commercial, industrial, manufacturing, forest, or agriculture zone; or
iii. Involves constructing a personal wireless service tower less than sixty (60) feet in height that is located in a commercial, industrial, manufacturing, forest, or agricultural zone.
b. For the purposes of this subsection:
i. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal laws and regulations.
ii. “Personal wireless service facilities” means facilities for the provision of personal wireless services.
iii. “Microcell” means a wireless communication facility consisting of an antenna that is either:
(A) Four feet in height and with an area of not more than five hundred eighty (580) square inches; or
(B) If a tubular antenna, no more than four inches in diameter and no more than six feet in length.
c. This exemption does not apply to projects within a critical area designated under the GMA (RCW 36.70A.060). (Ord. 575 § 18, 2009; Ord. 548 § 2 (Exh. D) (part), 2007)
18.64.030 Use of exemptions.
A. Each department within the city which receives an application for a license or, in the case of governmental proposals, the department which initiates the proposal shall determine whether the license and/or proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The 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 by WAC 197-11-060. If a proposal includes exempt and also nonexempt actions, the department shall determine the lead agency, even if the license application which triggered the department’s consideration is exempt.
C. If a proposal includes both exempt and nonexempt actions, the city may authorize the exempt actions to proceed prior to compliance with the procedural requirements of this chapter, except that:
1. The city shall not give authorization for:
a. Any nonexempt action;
b. Any action that would have an adverse environmental impact; or
c. Any action that would limit the choice of reasonable alternatives (see WAC 197-11-070);
2. A department may withhold approval of an exempt action which would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) subsequently were not approved; and
3. A department may withhold approval of exempt actions which would lead to substantial financial expenditure by a private applicant when the expenditures would serve no purpose if nonexempt action(s) subsequently were not approved. (Ord. 548 § 2 (Exh. D) (part), 2007)
18.64.040 Environmental checklist.
A. A completed environmental checklist in the form provided in WAC 197-11-960 or the city environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this chapter, unless:
1. The city and applicant agree an EIS is required; or
2. SEPA compliance has been completed; or
3. SEPA compliance has been initiated by another agency.
B. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, to determine the responsible official and make the threshold determination.
C. For private proposals, the city will require the applicant to complete the environmental checklist and provide assistance as necessary. For city proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.
D. The city may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:
1. The city has technical information on a question or questions that is unavailable to the private applicant; or
2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. In addition to the established environmental review fee, an environmental checklist preparation fee shall also be collected to complete the environmental checklist. (Ord. 575 § 19, 2009; Ord. 548 § 2 (Exh. D) (part), 2007)
18.64.050 Mitigated determination of nonsignificance (DNS).
A. As provided in this section and in WAC 197-11-350, 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 clarifications of, the proposal made by the applicant.
B. An applicant may request in writing early notice of whether a determination of significance (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; and
2. Precede the city’s actual threshold determination for the proposal.
C. The responsible official should respond to the request for early notice within fifteen (15) working days. The response will:
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; and
3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.
D. As much as possible, the 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 or amended environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen (15) days of receiving the changed or clarified proposal:
1. If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a DNS 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 (clarifications, 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 a two hundred (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 is issued under WAC 197-11-340(2), requiring a fourteen (14) day comment period and public notice.
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 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. (Ord. 548 § 2 (Exh. D) (part), 2007)