Chapter 21.20

Chapter 21.20
STATE ENVIRONMENTAL POLICY ACT

Sections:

21.20.010 Purpose.

21.20.020 Designation of responsible official.

21.20.030 Lead agency determination and agency responsibilities.

21.20.040 Categorical exemptions.

21.20.050 Environmental checklist.

21.20.060 Threshold determination.

21.20.070 Threshold determination – Determination of nonsignificance (DNS).

21.20.080 Threshold determination – Mitigated determination of nonsignificance (MDNS).

21.20.090 Optional DNS process.

21.20.100 Threshold determination – Determination of significance (DS).

21.20.110 Environmental impact statement.

21.20.120 Environmental impact statement – Preparation.

21.20.130 Commenting.

21.20.140 Using existing environmental documents.

21.20.150 SEPA agency decisions, conditions, and appeals.

21.20.160 Definitions.

21.20.170 Forms.

21.20.010 Purpose.

This chapter implements the State Environmental Policy Act (SEPA), RCW 43.21C.120 and Chapter 197-11 WAC. (Ord. 07-015 § 4, 2007).

21.20.020 Designation of responsible official.

For those proposals for which the City is lead agency, the responsible official shall be the community development director (director). The responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement, and perform any other functions assigned to the lead agency or responsible official. (Ord. 07-015 § 4, 2007).

21.20.030 Lead agency determination and agency responsibilities.

A. When an application is filed for a nonexempt action or the City initiates a nonexempt action, the responsible official shall determine the lead agency for that proposal pursuant to WAC 197-11-050 and 197-11-922 through 197-11-940, unless a lead agency has been previously identified or the responsible official is aware that another department or agency is in the process of determining the lead agency.

B. When the City is not the lead agency for a proposal, all departments of the City shall use and consider as appropriate either the determination of nonsignificance or the final environmental impact statement of the lead agency in making decisions on the proposal. No City department shall prepare or require preparation of a determination of nonsignificance or environmental impact statement in addition to that prepared by the lead agency unless the responsible official determines a supplemental environmental review is necessary under WAC 197-11-600.

C. 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 or the City must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the 15-day time period. Any such petition on behalf of the City shall be initiated by the responsible official.

D. The responsible official is authorized to make agreements as to lead agency status or shared lead agency’s duties for a proposal under WAC 197-11-942 and 197-11-944.

E. The responsible official shall require sufficient information from the applicant to identify other agencies with jurisdiction. (Ord. 07-015 § 4, 2007).

21.20.040 Categorical exemptions.

Categorical exemptions are set forth in WAC 197-11-800.

A. Application. If a proposal fits within any of the exemptions set forth in this section, the proposal shall be categorically exempt from the threshold determination requirements of WAC 197-11-720, except as follows:

1. The proposal includes an activity that is not exempt under WAC 197-11-908, Critical areas; or

2. The proposal is a segment of a proposal that includes a series of actions, physically or functionally related to each other, some of which are categorically exempt and some of which are not; or

3. The proposal includes, or is a part of, a series of exempt actions that are physically or functionally related to each other and that together may have a probable significant adverse impact in the judgment of an agency with jurisdiction.

B. Flexible Thresholds. The City adopts the following exempt levels for new construction pursuant to WAC 197-11-800(1)(c):

1. For residential dwelling units, up to 20 dwelling units.

2. For agricultural structures, up to 30,000 square feet.

3. For office, school, commercial, recreational, service or storage buildings, up to 12,000 square feet of gross floor area and with associated parking facilities designed for up to 40 parking spaces.

4. For parking lots, up to 40 parking spaces.

5. For landfills and excavations, up to 500 cubic yards.

C. Procedure. The agency or applicant may proceed with the exempt aspects of a proposal prior to conducting environmental review of the nonexempt aspects of a proposal; provided, that the requirements of WAC 197-11-070 are met.

D. Written Findings. The lead agency is not required to document that a proposal is categorically exempt; however, the lead agency may note on an application that a proposal is categorically exempt or place such a determination in the agency’s files. (Ord. 07-015 § 4, 2007).

21.20.050 Environmental checklist.

A completed environmental checklist shall be filed prior to or at the same time as an application for a permit, license, certificate, or other approval not categorically exempt. A checklist is not needed if the City and the applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency.

A. This checklist has been modified pursuant to WAC 197-11-960 and shall be in the form identified in SVMC 21.20.170(A).

B. For private proposals, the City will require the applicant to complete the environmental checklist. For public proposals, the department initiating the proposal shall complete the environmental checklist for that proposal. During the review of the environmental checklist, the staff will review and if necessary return the checklist to the applicant for revisions and/or additional information. City staff may also make minor changes or additions to the environmental checklist.

C. For projects submitted under an approved planned action under WAC 197-11-164 and 197-11-168, the City shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. The modified environmental checklist form may be prepared and adopted along with, or as part of, a planned action ordinance, or developed after the ordinance is adopted. In either case, a proposed modified environmental checklist form must be sent to the Department of Ecology to allow at least a 30-day review prior to use. (Ord. 07-015 § 4, 2007).

21.20.060 Threshold determination.

A threshold determination is required pursuant to WAC 197-11-310. Within 90 days of issuing a letter of completeness for the application and environmental checklist, the responsible official shall either make a threshold determination or notify the applicant that a determination of significance is likely and indicate the areas of likely impact. The applicant may request that the decision be postponed for an additional 30 days to allow the responsible official to evaluate mitigation measures proposed by the applicant. The responsible official shall grant such extension, if requested. (Ord. 07-015 § 4, 2007).

21.20.070 Threshold determination – Determination of nonsignificance (DNS).

A. The responsible official may issue a DNS pursuant to WAC 197-11-340 if there will be no probable significant adverse impacts from a proposal. The lead agency shall prepare and issue a DNS substantially in the form provided in WAC 197-11-970.

B. When a DNS is issued for any of the proposals listed in subsection (B)(1) of this section, the requirements of this subsection shall be met. The requirements of this subsection do not apply to a DNS issued when the optional DNS process set forth in SVMC 21.20.090 is used.

1. An agency shall not act upon a proposal for 14 days after the date of issuance of a DNS if the proposal involves:

a. Another agency with jurisdiction;

b. Demolition of any structure or facility not exempted by WAC 197-11-800(2)(f) or 197-11-880;

c. Issuance of clearing or grading permits not exempted under SVMC 21.20.040;

d. A DNS under WAC 197-11-350(2) or (3) or 197-11-360(4); or

e. An action related to the requirements of the Growth Management Act.

2. The responsible official shall send the DNS and environmental checklist to agencies with jurisdiction, the Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal, and shall give notice pursuant to SVMC 21.20.130(A).

3. Any person, affected tribe, or agency may submit comments to the lead agency within 14 days of the date of issuance of the DNS.

4. The date of issue for the DNS is the date the DNS is sent to the Department of Ecology and agencies with jurisdiction and is made publicly available.

5. An agency with jurisdiction may assume lead agency status only within the 14-day comment period pursuant to WAC 197-11-948.

6. The responsible official shall reconsider the DNS based on timely comments and may retain or modify the DNS or, if the responsible official determines that significant adverse impacts are likely, withdraw the DNS and/or supporting documents. When a DNS is modified, the lead agency shall send the modified DNS to agencies with jurisdiction.

C. The lead agency shall withdraw a DNS if:

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

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

3. The DNS was procured by misrepresentation or lack of material disclosure; if such DNS resulted from actions of an applicant, any subsequent environmental checklist on the proposal shall be prepared directly by the lead agency or a consultant at the expense of the applicant.

D. If the lead agency withdraws a DNS, the lead agency shall make a new threshold determination and notify other agencies with jurisdiction of the withdrawal and new threshold determination. If a DS is issued, each agency with jurisdiction shall commence action to suspend, modify or revoke any approvals until the necessary environmental review has occurred (WAC 197-11-070). (Ord. 07-015 § 4, 2007).

21.20.080 Threshold determination – Mitigated determination of nonsignificance (MDNS).

A. The responsible official may issue a MDNS based on conditions attached to the proposal by the responsible official or on changes to or clarification of the proposal made by the applicant in a manner consistent with WAC 197-11-350.

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 complete permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

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

C. The responsible official or a designee shall respond in writing to the request for early notice within 14 days unless otherwise agreed to. The response shall:

1. Be in writing; and

2. State whether the City currently considers issuance of a DS likely, and if so, indicate the general or specific area(s) of concern 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. The City’s written response under the subsections above shall not be construed as a DS. In addition, preliminary discussions of clarifications or changes to a proposal, shall not bind the City to consider the clarifications or changes in its threshold determination.

E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the responsible official shall base the threshold determination on the changed or clarified proposal.

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

2. If the responsible official indicated areas of concern but did not indicate specific mitigation measures that would allow the issuance of a DNS, the responsible official 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.

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 MDNS is issued either under WAC 197-11-340(2) requiring a 14-day comment period unless otherwise established by agency procedure and public notice pursuant to SVMC 21.20.130, or under WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.

G. Mitigation measures incorporated in the MDNS 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. (Ord. 07-015 § 4, 2007).

21.20.090 Optional DNS process.

A. If the City has a reasonable basis for determining significant adverse environmental impacts are unlikely, it may use a single integrated comment period to obtain comments on the notice of application and the likely threshold determination for the proposal. If this process is used, a second comment period will typically not be required when the DNS is issued; refer to subsection D of this section.

B. If the lead agency uses the optional DNS process specified in subsection A of this section, the lead agency shall:

1. State on the first page of the notice of application that it expects to issue a DNS for the proposal and that:

a. The optional DNS process is being used;

b. This may be the only opportunity to comment on the environmental impacts of the proposal;

c. The proposal may include mitigation measures under applicable codes, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared; and

d. A copy of the subsequent threshold determination for the specific proposal may be obtained upon request. In addition, the lead agency may choose to maintain a general mailing list for threshold determination distribution.

2. List in the notice of application the conditions being considered to mitigate environmental impacts, if a MDNS is expected.

3. Comply with the requirements for a notice of application in Chapter 17.80 SVMC and public notice in SVMC 21.20.130(A).

4. Send the notice of application and environmental checklist to:

a. Agencies with jurisdiction, the Department of Ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and

b. Anyone requesting a copy of the environmental checklist for the specific proposal.

C. If the lead agency indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application pursuant to WAC 197-11-948.

D. The responsible official shall consider timely comments on the notice of application and take one of the following actions:

1. Issue a DNS or MDNS with no comment period using the procedures in subsection E of this section;

2. Issue a DNS or MDNS with a comment period using the procedures in subsection E of this section, if the lead agency determines a comment period is necessary;

3. Issue a DS; or

4. Require additional information or studies prior to making a threshold determination.

E. If a DNS or mitigated DNS is issued under subsection (D)(1) of this section, the lead agency shall send a copy of the DNS or mitigated DNS to the Department of Ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated. (Ord. 07-015 § 4, 2007).

21.20.100 Threshold determination – Determination of significance (DS).

If the responsible official determines that a proposal may have a probable significant adverse environmental impact, the responsible official shall prepare and issue a determination of significance (DS) substantially in the form substantially in the form provided in WAC 197-11-980. The DS shall contain the information as set forth in WAC 197-11-360. An environmental impact statement shall be prepared for projects for which a DS threshold determination has been issued consistent with the appropriate sections of this title and referenced sections of the WAC. (Ord. 07-015 § 4, 2007).

21.20.110 Environmental impact statement.

An environmental impact statement (EIS) is required for project and nonproject actions that may have a significant adverse impact on the environment as more specifically set forth in WAC 197-11-330 and shall be prepared pursuant to WAC 197-11-400 through 197-11-460. (Ord. 07-015 § 4, 2007).

21.20.120 Environmental impact statement – Preparation.

A. Any person, firm, or corporation assisting in the preparation of an EIS for private projects shall have expertise and experience in preparing environmental impact statements and shall be approved in writing by the responsible official before participating in the EIS process.

B. Preparation of environmental impact statements, supplemental environmental impact statements, and other environmental documentation shall be under the direction of the responsible official. The documents may be prepared by the City staff, or by a consultant approved and directed by the City; however, all costs involved in the preparation of an EIS shall be borne by the applicant. The responsible official shall notify the applicant of the City’s procedure for preparation, and distribution of the draft and final environmental impact statement.

C. The City may require an applicant to provide information the City does not possess, including specific investigations relating to elements of the environment, if such information is required under this chapter or another statute or ordinance.

D. Before the City issues a preliminary or final environmental impact statement, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

E. The City may create and maintain an EIS list of qualified consultants to assist in determining the expertise and experience of consultants using, but not limited to, the following procedures:

1. Annually or biannually placing a legal notice in a newspaper of local circulation requesting statement of qualifications (SOQ) from qualified consultants.

2. The City will review the SOQs and require interested consultants to submit an application package to be placed on the list.

3. The City will review the submitted materials and place those consultants who are determined to meet the minimum qualifications on the list. Those qualifications include, but are not limited to:

a. Possessing a thorough and comprehensive knowledge of the procedural and substantive requirements of SEPA and related regulations; and

b. Possessing adequate technical and administrative capacity to produce EIS documents and/or associated technical documents.

F. The table of contents shall include a list of elements of the environment as set forth in WAC 197-11-444, indicating those elements or portions of elements that do not involve significant adverse impacts.

G. The City may include, at its discretion, in an EIS or its appendix, the analysis of any impact relevant to the City’s decision, whether or not the impact is an environmental one. This inclusion of such analysis may or may not be based upon comments received during the scoping process. The provision for combining documents may be used as set forth in WAC 197-11-640. The EIS shall comply with the formatting requirements of WAC 197-11-400 through 197-11-500. The decision whether to include such information and the adequacy of any such additional analysis shall not be used in determining whether an EIS meets the requirements of SEPA.

H. If the City chooses to include a cost/benefit analysis in an EIS, such analysis shall be consistent with WAC 197-11-450. (Ord. 07-015 § 4, 2007).

21.20.130 Commenting.

The rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings are set forth below as well as in WAC 197-11-500 through 197-11-570.

A. Public Notice. Whenever possible, the City shall integrate the public notice requirement of this section with existing notice procedures for the City’s nonexempt permit(s) or approval(s) required for the proposal. When the City issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the City shall give public notice as follows:

1. If public notice is required for a nonexempt license by other regulations, that notice shall state whether a DS or DNS has been issued and when comments are due.

2. If an environmental document is issued concurrently with the notice of application, the public notice requirements as set forth in Chapter 17.80 SVMC will suffice to meet the public notice requirements in WAC 197-11-510(1).

3. If no public notice is otherwise required for the permit or approval, the lead agency shall give notice of the DNS or DS as provided for in WAC 197-11-510 and locally adopted rules and regulations.

4. If a DNS is issued using the optional DNS process, the public notice requirements for a notice of application as set forth in Chapter 17.80 SVMC as supplemented by the requirements in WAC 197-11-355, will suffice to meet the public notice requirements in WAC 197-11-510(1)(b).

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

a. Indicating the availability of the DEIS in any public notice required for the nonexempt license subsequently published after the issuance of the DEIS and prior to the first public hearing regarding a nonexempt license.

b. Selecting one or more of the following notification methods:

i. Posting the property for site-specific proposals pursuant to the administrative procedures for the underlying action;

ii. Publishing a legal notice in a newspaper of general circulation;

iii. Notifying public or private groups which have expressed an interest in a certain proposal, or in the type of proposal being considered;

iv. Notifying the news media;

v. Placing notices in appropriate regional, neighborhood, ethnic, or trade journals;

vi. Publishing notice in newsletters and/or sending notice to agency mailing lists (either general lists or lists for specific proposals for subject areas).

6. The City may require an applicant to complete the public notice requirements for the proposal at his or her expense or otherwise may charge a fee sufficient to cover the lead agency’s entire cost of meeting the public notice requirements.

B. Response to a Consultation Request. The director of the department with appropriate expertise shall be responsible for preparation of written comments for an agency in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing DEIS in a manner consistent with WAC 197-11-550. (Ord. 07-015 § 4, 2007).

21.20.140 Using existing environmental documents.

Existing environmental documents prepared under SEPA or the National Environmental Policy Act (NEPA) may be used for an agency’s own environmental compliance in a manner consistent with WAC 197-11-164 through 197-11-172 and WAC 197-11-600 through 197-11-640. (Ord. 07-015 § 4, 2007).

21.20.150 SEPA agency decisions, conditions, and appeals.

A. SEPA decisions to mitigate anticipated impacts or deny proposals shall be made in a manner consistent with WAC 197-11-650 and 197-11-660. The City, in making its determination shall consider relevant environmental documents, alternatives, and mitigation measures as set forth in WAC 197-11-655.

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 with regard to the license;

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; and

5. Such conditions are based on one or more policies in subsection C 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 provided that:

1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a final environmental impact statement (FEIS) or final supplemental environmental impact statement (SEIS) prepared pursuant to this chapter; and

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

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. Pursuant to RCW 43.21.060 and WAC 197-11-060(a) and 197-11-902 the City adopts the following policies as the basis for the imposition of mitigating conditions as set forth in this chapter:

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

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

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

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

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

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

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

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

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

E. Except for permits and variances issued pursuant to Chapter 90.58 RCW (the Washington State Shorelines Management Act) and rules promulgated thereto, appeals of decisions or actions conditioned or denied on the basis of SEPA by a non elected official shall be appealable in accordance with Chapter 17.90 SVMC. (Ord. 07-015 § 4, 2007).