Chapter 30.61
ENVIRONMENTAL REVIEW (SEPA)

Sections:

30.61.005    Legislative objectives.

30.61.010    Purpose and applicability.

30.61.020    SEPA rules - adoption by reference.

30.61.030    Use of exemptions.

30.61.035    Exemption thresholds for minor new construction.

30.61.040    Lead agency.

30.61.045    Lead department.

30.61.055    Designation of responsible officials and consultation.

30.61.057    Completeness determination.

30.61.060    Time limits.

30.61.065    Additional timing considerations.

30.61.070    Expiration of all applications subject to SEPA.

30.61.100    Environmental checklist.

30.61.110    Public notice.

30.61.112    Environmental review of building or land disturbing activity permit subsequent to environmental review of land use proposal.

30.61.115    Early notice of whether a determination of significance is likely.

30.61.120    Mitigated determination of nonsignificance (MDNS).

30.61.122    State Environmental Policy Act (SEPA) requirements relating to stormwater management.

30.61.130    EIS preparation.

30.61.140    EIS public hearing.

30.61.150    No action for seven days after publication.

30.61.200    Authority to condition.

30.61.210    Authority to deny.

30.61.220    Denial without EIS.

30.61.230    SEPA policies.

30.61.300    SEPA appeals - general.

30.61.305    Appeal of threshold determination-filing of affidavit or declaration.

30.61.307    Mandatory settlement conference.

30.61.310    Standard of review and hearing procedure for SEPA appeals.

30.61.330    Judicial review.

30.61.005 Legislative objectives.

(1) In order to carry out the objectives set out in chapter 43.21C RCW, the county shall use all practicable means consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:

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

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

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

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

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

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

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

(2) The county 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.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.010 Purpose and applicability.

The purpose of this chapter is to establish the process for environmental review pursuant to chapter 43.21C RCW, the State Environmental Policy Act (SEPA). The requirements of this chapter are applicable to all actions as defined by the SEPA rules (chapter 197-11 of the Washington Administrative Code (WAC)) of the county and its departments, officers, boards, commissions, and councils.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.020 SEPA rules - adoption by reference.

This section adopts, by reference, the SEPA rules as set forth in chapter 197-11 WAC as now existing or hereafter amended and as supplemented by this chapter.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.030 Use of exemptions.

(1) Each department that receives an application for a license or, in the case of governmental proposals, the department initiating the proposal shall determine whether the license and/or the 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, the procedural requirements of this chapter shall not apply. The county shall not require completion of an environmental checklist for an exempt action.

(2) In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined (WAC 197-11-060) and shall identify the governmental licenses required. 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.

(3) If a proposal includes both exempt and nonexempt actions, the county may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

(a) The county 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 reasonable alternatives;

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

(c) A department may withhold approval of exempt actions linked to a nonexempt action that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.035 Exemption thresholds for minor new construction.

(1) As allowed under WAC 197-11-800(1)(c) and (d), the exempt levels for minor new construction are as follows:

(a) The construction or location of any single family residential structures of 20 dwelling units or less within an urban growth area and 20 dwelling units or less outside of an urban growth area;

(b) The construction or location of any multifamily residential structures of 60 dwelling units or less within an urban growth area and 25 dwelling units or less outside of an urban growth area;

(c) The construction of a barn, loafing shed, farm equipment storage building, produce storage or parking structure, or similar agricultural structure covering 40,000 square feet or less;

(d) The construction of an office, school, commercial, recreational, service, or storage building of 25,000 square feet or less and associated parking facilities designed for 90 or fewer automobiles within an urban growth area and 12,000 square feet or less and associated parking facilities designed for 40 or fewer automobiles outside of an urban growth area;

(e) The construction of a parking lot designed for 40 or fewer parking spaces; and

(f) Any landfill or excavation of 1,000 cubic yards or less throughout the total lifetime of the fill or excavation.

(2) The exempt levels established in subsection (1) of this section are based upon local conditions.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Ord. 03-034, May 7, 2003, Eff date May 19, 2003; Amended by Amended Ord. 15-064, March 30, 2016, Eff date April 11, 2016)

30.61.040 Lead agency.

(1) Lead agency responsibilities. The lead agency shall be the only agency responsible for complying with the threshold determination procedures, the supervision or actual preparation and circulation of draft and final environmental impact statements (EISs), and the conduct of any public hearings required by the SEPA rules.

(2) Lead agency determination.

(a) Any department receiving or initiating a nonexempt proposal, shall determine the lead agency for that proposal pursuant to the criteria set forth under WAC 197-11-050 and WAC 197-11-922 through WAC 197-11-940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency. To make the lead agency (and lead department) determination, such acting department must determine to the best of its ability the other agencies (and departments) with jurisdiction over the proposal. This can be done by requesting information from a private applicant and through consultation with the department.

(i) if the acting department determines that the county is the lead agency, it shall additionally determine the lead department for the proposal in accordance with SCC 30.61.045. If the lead department is not the acting department, the acting department shall transmit to the lead department the application it received together with the completed environmental checklist and its lead agency and lead department determination and explanation therefore. If not disputed pursuant to SCC 30.61.045(2), the lead department shall immediately mail a copy of the lead agency determination and explanation thereof to all other agencies with jurisdiction. The lead department shall then proceed to the threshold determination procedures in WAC 197-11-300 through WAC 197-11-390. If another agency with jurisdiction objects to the lead agency determination, and the dispute cannot be resolved by agreement, such agency may within 15 days of receipt of the determination, petition the department of ecology for a lead agency determination pursuant to WAC 197-11-946.

(ii) if the acting department determines that another agency is the lead agency, it shall mail to the lead agency a copy of the application it received, together with the completed environmental checklist and its determination of lead agency and explanations therefore. If the agency receiving this determination does not agree that it is the lead agency, and the dispute cannot be resolved by agreement, the department of ecology shall be petitioned for a lead agency determination pursuant to WAC 197-11-946.

(b) Upon receipt by the county of a lead agency determination for a proposal from another agency, the determination shall immediately be transmitted to the lead department for such proposal if the county was determined to be the lead agency or to departments with jurisdiction over the proposal if another agency was determined to be the lead agency. In the event that such determination is inconsistent with the criteria of WAC 197-11-922 through 197-11-940, the county or lead department may object thereto. Any such objection must be made and resolved within 15 days of receipt of the determination, or the county must petition the department of ecology for a lead agency determination pursuant to WAC 197-11-946 within the 15-day time period. Any such petition shall be initiated by the county executive.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.045 Lead department.

(1) Lead department responsibilities. The lead department shall be responsible for undertaking lead agency duties where the county is the lead agency.

(2) Procedure. The lead department shall be determined for projects for which the county is the lead agency in accordance with the criteria of this chapter. Interdepartmental disputes over the application of such criteria, which cannot be settled by agreement, shall be determined by the county executive. In addition, the county executive upon request therefore may waive the criteria and designate a special lead department for a proposal where strict application of such criteria would result in interdepartmental budgetary or manpower inequities.

(3) Governmental proposals - project. The lead department for all proposals for governmental action of a project nature shall be the department which would have primary administrative responsibility for such action.

(4) Governmental proposals - non-project. The lead department for all proposals for governmental action of a non-project nature shall be the department initiating the proposal.

(5) Private projects.

(a) For proposed private projects over which only one department has jurisdiction, the lead department shall be the department with jurisdiction.

(b) For private projects which require licenses from more than one department, the lead department shall be one of the departments with jurisdiction, based upon the following order of priority:

(i) the department;

(ii) department of public works;

(iii) auditor;

(iv) county council; and

(v) other departments.

(c) The "responsible official" for purposes of receiving a notice of intent to commence a judicial appeal is the clerk of the county council.

(6) Agreements as to lead department status. Nothing herein shall prohibit a department from assuming the role of lead department as a result of an agreement among all departments with jurisdiction.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.055 Designation of responsible officials and consultation.

(1) The responsible official shall be designated as follows:

(a) For those proposals for which the county is the lead agency, the responsible official shall be the director of the lead department or his/her designee as determined in SCC 30.61.045.

(b) For all proposals for which the county is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any EIS, and perform any other functions assigned to the "lead agency" or "responsible official" by those sections of the SEPA rules that are adopted by reference in this title.

(2) The department shall be responsible for the preparation of written comments for the county in response to a consultation request prior to a threshold determination, participation in scoping, or reviewing a draft EIS. All consultation requests shall be forwarded to the department who shall distribute them to appropriate departments with expertise or jurisdiction for their timely preparation of written responses.

(3) Departments when responding to consultation requests from a lead agency through the department pursuant to subsection (1)(b) of this section, or from a lead department where the county is the lead agency, shall provide to the director or lead department in writing such responsive data, comments, information, test results, and other material which it possesses relevant to its area of jurisdiction or expertise.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 15-064, March 30, 2016, Eff date April 11, 2016)

30.61.057 Completeness determination.

(1) The following information is necessary for a complete application and the completion of adequate environmental review, and shall be submitted by the applicant at the time of permit application submittal:

(a) A signed and completed environmental checklist, including written responses to all questions; and

(b) Supporting documentation, including any additional information necessary to comprehensively disclose and evaluate whether the proposal is likely to have significant adverse environmental impacts.

(2) The information required in subsection (1)(a) of this section shall also be included as part of the information necessary for a complete application pursuant to SCC 30.70.040.

(3) A SEPA completeness determination shall be consolidated with the completeness determination for the underlying project permit application and shall be subject to the provisions of SCC 30.70.040.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.060 Time limits.

The following time limits (expressed in calendar days) shall apply to the SEPA process for all project permit applications.

(1) Categorical exemptions. A determination that a project is categorically exempt shall be made within 28 days of the date of application submittal.

(2) Threshold determinations.

(a) Threshold determinations made for proposed actions subject to the time periods established for project permit review in SCC 30.70.110, shall be made as early as possible in the permit review process as is necessary to meet permit review time limitations specified in SCC 30.70.110, and for Type 2 project permit applications, on or before day 49 of the 120-day permit review period. If a proposal is substantially revised and/or altered so as to require the county to conduct a complete re-evaluation of proposal impacts in conjunction with a substantial project redesign, the revised proposal shall be processed as a new application for the purposes of meeting the review time period requirements of this chapter and SCC 30.70.040.

(b) No threshold determination for a Type 1 or Type 2 project permit application, shall be issued until the expiration of the public comment period established for the notice of application pursuant to SCC 30.70.060 except for a determination of significance.

(3) EIS preparation. The time period necessary for EIS preparation will vary on a case-by-case basis and is dependent upon the nature of the proposed action, and the number and complexity of the environmental elements to be included in the document. The time period for preparing an EIS shall be consistent with the time period specified by the department pursuant to SCC 30.70.110, or consistent with time periods mutually agreed to by the lead department and project applicant.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.065 Additional timing considerations.

(1) A DNS or final EIS for a proposal shall accompany the report of the applicable department pursuant to SCC 30.72.040 and 30.73.040.

(2) If the county’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the county conduct environmental review prior to submission of the detailed plans and specifications. The lead department may conduct the environmental review if the proposal’s impacts upon the environment can be reliably identified without the submittal of detailed plans.

(3) For nonexempt proposals where the county is the lead agency and also the project proponent, the review required under this chapter may be conducted prior to submitting a project permit application.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.070 Expiration of all applications subject to SEPA.

(1) If the responsible official determines that the information initially supplied is not reasonably sufficient to evaluate the environmental impacts of the proposal and make a threshold determination, further information may be required of the applicant in conformance with WAC 197-11-100 and WAC 197-11-335. The requirement of SCC 30.70.140 shall also apply.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.100 Environmental checklist.

(1) A completed environmental checklist, 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; except that a checklist is not needed if the county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The county shall use the environmental checklist to determine the lead agency and, if the county is the lead agency, for determining the responsible official and for making the threshold determination.

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

(3) The county may complete all or part of the environmental checklist for a private project if either of the following occurs:

(a) The county has technical information on a question that is unavailable to the private applicant; or

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

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.110 Public notice.

(1) The county shall give public notice of the issuance of a DNS, a determination of significance (DS), a draft EIS, and a draft supplemental EIS for site specific project actions by posting, publishing, and mailing as provided in SCC 30.70.045, except that when the optional DNS process of WAC 197-11-355 is used, notice shall be given by mailing a copy of the DNS to the department of ecology, agencies with jurisdiction, persons who commented, and any person who requests a copy. Notice of environmental documents for nonproject actions, including but not limited to, comprehensive plan adoption and amendments, and development regulation adoptions and amendments shall be given by publication pursuant to SCC 30.70.045(2).

(2) Whenever a DS is issued under WAC 197-11-360(3), the scoping procedures for the proposal shall be included as required in WAC 197-11-408.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Ord. 03-068, July 9, 2003, Eff date July 28, 2003)

30.61.112 Environmental review of building or land disturbing activity permit subsequent to environmental review of land use proposal.

Environmental review of a land use proposal should include all environmental impacts of the proposal known at the time of review, including environmental impacts for subsequent permits required for the same proposal. The applicable department must adopt the environmental documents used in the environmental review for the land use proposal for environmental review of subsequent permits required for the same proposal unchanged unless:

(1) Another agency with jurisdiction is dissatisfied with the environmental documents, in which case it must assume lead agency status;

(2) There are substantial changes to the proposal such that the proposal is likely to have significant adverse environmental impacts that were not previously considered; or

(3) There is new information indicating the proposal’s probable significant adverse environmental impacts that was not previously considered in the environmental review for the land use proposal.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 10-023, June 9, 2010, Eff date Sept. 30, 2010)

30.61.115 Early notice of whether a determination of significance is likely.

(1) 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 department is lead agency; and

(b) Precede the county’s actual threshold determination for the proposal.

(2) The responsible official shall respond to the request for early notice within 60 days of receipt of a complete application. The response shall:

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

(b) 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.

(3) The county may assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.120 Mitigated determination of nonsignificance (MDNS).

(1) As provided in 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) When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the county shall base its threshold determination on the changed or clarified proposal and shall make the determination within the time periods established for making a threshold determination in SCC 30.61.060.

(a) If the county indicated specific mitigation measures which would remove all probable significant adverse environmental impacts in its response to the request for early notice pursuant to SCC 30.61.115, and the applicant changed or clarified the proposal to include those specific mitigation measures, the county shall issue and circulate an MDNS under WAC 197-11-350(2).

(b) If the county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the county 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. 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.

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

(3) An MDNS issued under WAC 197-11-350(2) requires a 14-day comment period and public notice.

(4) Mitigation measures incorporated in the MDNS shall be conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit.

(5) A decision maker or a reviewing body on an appeal shall not be bound by the designation of mitigation measures contained in an MDNS and may change the mitigation measures or impose additional conditions of approval as authorized by law. If at any time the proposed mitigation measures are withdrawn or substantially changed, the responsible official shall make a new threshold determination and, if necessary may withdraw the MDNS and issue a DS.

(6) The county’s written response under SCC 30.61.115 shall not be construed as a DS. In addition, preliminary discussion of clarifications or changes to a proposal shall not bind the county to issue an MDNS.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.122 State Environmental Policy Act (SEPA) requirements relating to stormwater management.

SEPA review shall include consideration of the specific probable adverse environmental impacts of a development activity with regard to on-site and off-site changes to stormwater volume, release rate, erosion, sedimentation, stream channel stability and water quality. When the director determines that the requirements of chapters 30.43C, 30.43D, 30.44, 30.62A, 30.62B, 30.62C, 30.63A, 30.63B, 30.65 and 30.67 SCC ensure that the development activity will not result in any probable significant adverse environmental impacts, compliance with those requirements shall constitute adequate analysis and mitigation of the specific significant probable adverse environmental impacts of the development activity with regard to on-site and off-site changes to stormwater volume, release rate, erosion, sedimentation, stream channel stability and water quality, as provided by RCW 43.21C.240.

(Added by Amended Ord. 10-026, June 9, 2010, Eff date Sept. 30, 2010; Amended by Amended Ord. 12-025, June 6, 2012, Eff date July 27, 2012; Amended by Amended Ord. 13-042, July 10, 2013, Eff date July 22, 2013; Amended by Amended Ord. 15-034, Sept. 2, 2015, Eff date Nov. 1, 2015; Amended by Ord. 15-103, Jan. 11, 2016, Eff date Jan. 22, 2016)

30.61.130 EIS preparation.

(1) The content of a draft or final EIS prepared pursuant to this chapter is determined by and the responsibility of the responsible official. EISs are to be prepared in a responsible manner and with appropriate methodologies; they are to be objective and unbiased; they are to be done in a timely and economical manner; and they must avoid a conflict of interest or the appearance of a conflict of interest.

(2) A draft or final EIS for a county proposal will be prepared by the county or an approved consultant, as determined by and under the supervision of the responsible official. A draft or final EIS for a private project will be prepared by an approved consultant, as determined by and under the supervision of the responsible official.

(3) The preparation of a draft or final EIS for a private project is subject to the following:

(a) Upon issuance of a determination of significance, the responsible official shall notify the applicant of the county’s procedure for EIS preparation;

(b) The applicant shall present its proposed consultant (or consultant team) for EIS preparation, selected from the county roster of approved consultants, to the responsible official. The responsible official shall approve or reject the proposed consultant. Any selected consultant may not have acted as an advocate for the applicant in seeking to demonstrate to the responsible official that the project does not require an EIS;

(c) The applicant, in consultation with the county, shall prepare a contract with the consultant or consulting team for consultant services. The scope of work for the contract shall be subject to county review, comment and approval; provided however, that any contract prepared pursuant to this chapter shall require the consultant to produce a document which allows the average reader to understand the significant and material information concerning the proposed action, impacts and alternatives, and that maintains a neutral and objective position in relation to the proposal. Such contract shall also specify that consultants who participate in preparing a county-directed EIS are considered an agent for the county in achieving an adequate document; that when adequacy of an EIS is challenged the consultant shall continue in its capacity as an agent for the county; and the consultant shall not act as an advocate for the project in any circumstances, including all SEPA appeals;

(d) The responsible official shall oversee and direct the consultant’s preparation of a draft or final EIS, including but not limited to: advice regarding areas of research and the organization of the draft and final EIS, and requirements regarding appropriate scientific methodology;

(e) The responsible official shall permit the applicant to participate in the preparation of a draft or final EIS, including but not limited to providing relevant project information and data for any area covered by the draft or final EIS. Preliminary drafts of the EIS or sections of the EIS prepared by consultants shall be submitted directly to the responsible official for review. A concurrent submittal may be made to the applicant. Consultant communication with the applicant outside the presence of county staff is limited to factual matters. No discussion of preliminary environmental analysis or conclusions is allowed without written authorization by the responsible official. If the applicant fails or refuses to provide adequate information or data required for preparation of the document, including adequate response to comments on a draft EIS, the responsible official may refuse to further process or consider the application until such information or data is provided, or until the application has expired pursuant to the county code provisions for the underlying project permit application, whichever is first; and

(f) The applicant shall bear and secure all consultant and county costs incurred in the preparation of a draft or final EIS, including associated studies as determined by the responsible official. The applicant shall pay all costs prior to issuance of a final EIS. The applicant’s obligation to pay for costs shall not be affected by the expiration of the application or if the application is not otherwise approved.

(4) The director is authorized to develop administrative guidelines and procedures to interpret and implement this section, including but not limited to, a form consultation contract, a system for collection of money from the applicant and distribution to the consultant for services rendered, requirements for requests for qualifications to establish a consultant roster, timelines for completion of a draft or final EIS, and an outline for EIS format and requirements for EIS content.

(5) This section shall not apply to projects for which a determination of significance has been issued and a consultant has been selected before July 16, 2000.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.140 EIS public hearing.

(1) Whenever a public hearing on the environmental impact of a proposed project action is required pursuant to WAC 197-11-535(2), and the county is the lead agency for the proposal, the hearing examiner shall preside at the hearing, and representatives from departments with jurisdiction shall attend.

(2) When a public hearing or meeting is conducted by the county for the proposed non-project action, the hearing or meeting may be used to satisfy the requirements of WAC 197-11-535(2).

(3) Notice of a public hearing conducted pursuant to this section shall be given at least 14 days prior to the hearing as follows:

(a) For project actions, in the manner specified in SCC 30.70.050; and

(b) For non-project actions, in the official county newspaper.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.150 No action for seven days after publication.

The county shall not act on a proposal for which an EIS has been required prior to seven days following the issuance of the final EIS.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.200 Authority to condition.

(1) The county may attach conditions to a permit or approval for a proposal. The conditions shall be related to specific adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the decision maker. The decision maker shall cite the county SEPA policy that is the basis of any condition under this chapter. A written document shall state the mitigation measures, if any, that will be implemented as a part of the decision, including any monitoring of environmental impacts. The document may be the permit or approval itself, or may be combined with other agency documents, or may reference relevant portions of environmental documents.

(2) The mitigation measures included in the conditions shall be reasonable and capable of being accomplished.

(3) Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of the proposal. Voluntary additional mitigation may occur.

(4) The county, before requiring mitigation measures, shall consider whether local, state, or federal requirements and enforcement would mitigate an identified significant impact.

(5) The conditions shall be based on one or more policies in SCC 30.61.230 and cited in the permit or approval, or other decision document.

(6) If, during project review, the county determines under RCW 43.21C.240 that the requirements for environmental analysis, protection, and mitigation measures in the county’s development regulations, comprehensive plan, or in other applicable local, state, or federal laws or rules, provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action, the county shall not impose additional mitigation under this chapter.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.210 Authority to deny.

The county may deny a permit or approval for a proposal on the basis of SEPA if the following are met:

(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 no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

(3) The denial is based on one or more policies identified in SCC 30.61.230, and identified in writing in the decision document.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.220 Denial without EIS.

When denial of a non-county proposal can be based on grounds which are ascertainable without preparation of an environmental impact statement, the responsible official may deny the application and/or recommend denial thereof by other departments or agencies with jurisdiction without preparing an EIS in order to avoid incurring needless county and applicant expense, subject to the following:

(1) The proposal is one for which a DS has been issued or for which early notice of the likelihood of a DS has been given;

(2) Any such denial or recommendation of denial shall be supported by express written findings and conclusions of substantial conflict with adopted plans, ordinances, regulations or laws; and

(3) When considering a recommendation of denial made pursuant to this section, the decision-making body may take one of the following actions:

(a) Deny the application; or

(b) Find that there is reasonable doubt that the recommended grounds for denial are sufficient and remand the application to the responsible official for compliance with the procedural requirements of this chapter.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.230 SEPA policies.

The county designates and adopts by reference the following SEPA policies as currently adopted or hereafter amended as the basis for the county’s exercise of authority pursuant to this chapter:

(1) The comprehensive plan;

(2) Shoreline management program;

(3) Unified development code, Title 30 SCC;

(4) Noise ordinance (chapter 10.01 SCC);

(5) SR-527 Traffic Impact Mitigation Policy; and

(6) The formally designated SEPA policies of other affected agencies or jurisdictions when there is an agreement with the affected agency or jurisdiction which specifically addresses impact identification, documentation, and mitigation and which references the environmental policies formally designated by the agency or jurisdiction for the exercise of SEPA authority.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Amended by Amended Ord. 10-072, Sept. 8, 2010, Eff date Oct. 3, 2010; Amended by Amended Ord. 12-025, June 6, 2012, Eff date July 27, 2012)

30.61.300 SEPA appeals - general.

(1) An aggrieved party of record may file an appeal of a DNS, MDNS, DS, or the adequacy of a final EIS as set forth in this section and SCC 30.71.050.

(2) An appeal made pursuant to this section is processed as an appeal of a Type 1 decision in accordance with chapter 30.71 SCC, except as otherwise provided in this section.

(3) An appeal of a DNS, MDNS, or EIS adequacy associated with an underlying Type 1 decision shall be combined with appeal of the underlying Type 1 decision and considered together at a combined appeal hearing, except as provided in SCC 30.61.300(10).

(4) An appeal of a DNS, MDNS, or EIS adequacy associated with an underlying Type 2 application shall be considered at an appeal hearing that is combined with the open record hearing for the Type 2 application, except as provided in SCC 30.61.300(10).

(5) An appeal of a DNS, MDNS, or EIS adequacy associated with a commercial building or land disturbing activity permit not related to single family residential development shall be processed as an appeal of a Type 1 decision.

(6) An appeal of a DS associated with a project permit application shall be adjudicated prior to a decision on the project permit, and for a Type 2 application, prior to convening an open record hearing for the Type 2 application.

(7) There is no administrative appeal of a DNS, MDNS, DS, or EIS adequacy associated with a Type 3 or other legislative decision.

(8) Administrative appeals shall be limited to one review of a threshold determination and to one review of the adequacy of a final EIS. An appeal shall not be allowed following remand from an appeal under this chapter, except that an appeal challenging the adequacy of a final EIS shall be allowed if the adequacy of a final EIS was not the subject of the prior appeal.

(9) Appeals of intermediate steps under this chapter, including but not limited to, lead agency determination, scoping, and draft EIS adequacy shall not be allowed.

(10) Appeal of a DNS, MDNS, or EIS adequacy related to a Type 1 or Type 2 shoreline substantial development, shoreline variance and shoreline conditional use permit shall be submitted to the state shorelines hearings board together with appeal of the underlying permit.

(11) An appeal of the conditioning or denial of a proposal pursuant to RCW 43.21C.060 shall not be made to the county council as a separate appeal under this chapter but may be considered as part of an underlying permit appeal filed pursuant to SCC 30.72.070.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003; Ord. 03-068, July 9, 2003, Eff Date July 28, 2003; Amended by Amended Ord. 10-023, June 9, 2010, Eff date Sept. 30, 2010)

30.61.305 Appeal of threshold determination-filing of affidavit or declaration.

(1) In addition to the requirements of chapter 30.71 SCC, any person filing an appeal of a threshold determination made pursuant to this chapter shall file with the hearing examiner, within seven days of filing the appeal, a sworn affidavit or declaration demonstrating facts and evidence, that, if proven, would demonstrate that the issuance of the threshold determination was clearly erroneous.

(2) The examiner shall summarily dismiss an appeal of a threshold determination pursuant to SCC 30.71.060 if the an appellant fails to file an affidavit or declaration pursuant to SCC 30.61.305(1), or if the examiner determines that the affidavit or declaration fails to demonstrate facts and evidence that, if proven, would demonstrate that the issuance of the threshold determination was clearly erroneous.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.307 Mandatory settlement conference.

The hearing examiner shall schedule a settlement conference including the applicable director, the appellant, and the applicant (if not the appellant) within seven days of receipt of an appeal.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.310 Standard of review and hearing procedure for SEPA appeals.

(1) An appeal of a DNS or an MDNS is reviewed under the clearly erroneous standard. Under the clearly erroneous standard, the hearing examiner may only overturn the decision of the responsible official if, after reviewing the entire record, the examiner is left with the definite and firm conviction that a mistake has been made.

(2) An appeal of an EIS adequacy determination is reviewed under the rule of reason standard. Under the rule of reason standard, the hearing examiner may only find the EIS inadequate if it fails to provide a reasonably thorough discussion of the significant aspects of the probable environmental consequences of the proposed action.

(3) In any appeal, the environmental determination made by the responsible official shall be entitled to substantial weight. The appellant shall have the burden of proof.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)

30.61.330 Judicial review.

(1) No person may seek judicial review of environmental determinations made pursuant to this chapter unless the person has first appealed the environmental determinations using the procedures set forth in the preceding sections of this chapter, where applicable.

(2) Proceedings for judicial review shall be governed by RCW 43.21C.075(4), (5), (6), (7), (8), and (9) and 43.21C.080. Judicial review under this section shall without exception be of the county’s final decision on the underlying application or proposal, together with its accompanying environmental determinations as required by RCW 43.21C.075(6)(c).

(3) The official notice required pursuant to the requirements of RCW 43.21C.075(5)(a), shall state the date and place for commencing an appeal.

(Added Amended Ord. 02-064, December 9, 2002, Eff date February 1, 2003)