Chapter 7.05


7.05.010    Authority, purpose and applicability.

7.05.020    Rules and policies adopted by reference.

7.05.030    Additional definitions.

7.05.040    Responsible official.

7.05.050    Lead agency determination and responsibilities.

7.05.060    Environmental checklist.

7.05.070    Additional timing considerations.

7.05.080    Public notice.

7.05.090    Categorical exemptions.

7.05.100    Emergency actions.

7.05.110    Environmental impact statements.

7.05.120    Environmental review.

7.05.130    Appeals.

7.05.010 Authority, purpose and applicability.

The resolution codified in this chapter is adopted under Chapter 197-11 WAC, Chapter 43.21C RCW, and the State Environmental Policy Act (SEPA). The SEPA Rules found in Chapter 197-11 WAC and Chapter 43.21C RCW, as existing or hereafter amended, shall be used in conjunction with this chapter.

The purpose of this chapter is to establish the District’s SEPA procedures and policies, and the rules for deciding whether a proposal has a “probable significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared as well as the impacts of those proposals which do not require an EIS. The requirements of this chapter are applicable to all actions as defined by the SEPA Rules of the District and its departments, officers, and Board of Commissioners. [Res. 2653 § 2, 2015].

7.05.020 Rules and policies adopted by reference.

The District hereby adopts by reference Chapter 197-11 WAC and Chapter 43.21C RCW as existing or hereafter amended and as supplemented by this chapter, specifically:

197-11-040    Definitions.

197-11-050    Lead agency.

197-11-055    Timing of the SEPA process.

197-11-060    Content of environmental review.

197-11-070    Limitations on action during SEPA process.

197-11-080    Incomplete or unavailable information.

197-11-090    Supporting documents.

197-11-100    Information required of applicants.

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.

197-11-535    Public hearings and meetings.

197-11-660    Substantive authority and mitigation.

197-11-756    Lands covered by water.

197-11-800    Categorical exemptions.

197-11-880    Emergencies.

197-11-890    Petitioning to DOE to change exemptions.

197-11-960    Environmental checklist.

197-11-965    Adoption notice.

[Res. 2653 § 3, 2015].

7.05.030 Additional definitions.

In addition to those definitions found in Chapter 197-11 WAC, the following terms shall have the following meanings, unless the context indicates otherwise:

“Department” means any division, subdivision, or organizational unit of the District established by resolution or order.

“Early notice” means the District’s response to an applicant stating whether it considers issuance of a determination of significance (DS) likely for the applicant’s proposal.

“Mail” means delivery of written communications, either physically or electronically.

“SEPA Rules” means Chapter 197-11 WAC and Chapter 43.21C RCW as amended by the Department of Ecology. [Res. 2653 § 4, 2015].

7.05.040 Responsible official.

(1) For those proposals for which the District is the lead agency, the responsible official shall be the General Manager or the General Manager’s designee.

(2) For all proposals for which the District is lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by the SEPA Rules.

(3) The Planning and Development Services Department (PDS) shall be responsible for supporting the duties of the responsible official, including, but not limited to:

(A) Coordinating and providing written responses to outside lead agency requests;

(B) Reviewing applications;

(C) Participating in scoping;

(D) Preparing and/or reviewing a draft and final EIS; and

(E) Preparing draft threshold determinations for responsible official review.

(4) Other departments may be requested to provide comments on a proposal, and shall provide a response in writing containing all relevant information it possesses related to its area of expertise within 10 working days.

(5) The District shall retain all documents required by the SEPA Rules and make them available in accordance with Chapter 42.56 RCW (Public Records Act) as existing or hereafter amended.

(6) All decisions of the responsible official and the District relating to the interpretation or application of this chapter shall be accorded substantial deference. [Res. 2653 § 5, 2015].

7.05.050 Lead agency determination and responsibilities.

(1) When an application for a proposal with a nonexempt action is received or initiated, the responsible official shall determine the lead agency for that proposal, unless the lead agency has been previously determined. If the proposal is likely to result in a determination of significance (DS), the District may transfer lead agency status to another jurisdiction with authority.

(2) When the District is the lead agency for a proposal, the responsible official shall supervise compliance with the threshold determination requirements.

(3) When the District is not the lead agency for a proposal, the responsible official shall use and consider, as appropriate, either the determination of nonsignificance (DNS) or the final environmental impact statement (EIS) of the lead agency in making decisions on the proposal. The District shall not prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. The District may conduct supplemental environmental review under WAC 197-11-600.

(4) If the District 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 shall be made to the lead agency that made the determination or a petition made to the State Department of Ecology for a lead agency determination under WAC 197-11-946 within 15 days of receipt of the determination. Any such petition on behalf of the District shall be made by the responsible official.

(5) The responsible official is authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944. If an agency other than the District will incur responsibilities as the result of such an agreement, both the responsible official and the appropriate agency shall approve the agreement.

(6) When making a lead agency determination for a private proposal, the responsible official shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (e.g., nonexempt licenses).

(7) For any private proposal where the District would be the lead agency and for which one or more state agencies have jurisdiction, the responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the District shall be an agency with jurisdiction.

To transfer lead agency duties, the responsible official must transmit a written notice of the transfer together with any relevant information available on the private proposal to the appropriate state agency with jurisdiction. The responsible official shall also provide written notice to the applicant and any other agencies with jurisdiction. [Res. 2653 § 6, 2015].

7.05.060 Environmental checklist.

(1) The following information is necessary for completion of adequate environmental review, and shall be submitted by the applicant for review. The responsible official may request additional reasonable information if necessary; however, a threshold determination shall not be made until the following minimum required items are provided:

(A) A signed and completed environmental checklist, in the form provided in WAC 197-11-9602, including written responses to all questions;

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

(C) Payment for review as set forth in the currently adopted fees and charges, if applicable.

(2) The responsible official shall determine within 15 business days whether all the required information is provided. If additional information is required, the responsible official shall so notify the applicant in writing within that time period. When a request for further information is submitted to the applicant, the applicant has 60 calendar days to respond or the District will abandon the application. The applicant may request additional time in writing, to be agreed upon with the District. The District shall review and respond to applicant submittals of additional information within 15 business days.

(3) A checklist is not required if the District and the applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency.

(4) For District-initiated applications, the department initiating the proposal shall prepare and provide the environmental checklist and supporting documentation. [Res. 2653 § 7, 2015].

7.05.070 Additional timing considerations.

(1) The timing of the issuance of threshold determinations shall follow the requirements of WAC 197-11-340 as existing or hereinafter amended. In no case shall a threshold determination be issued until after the comment period on a notice of application (see AWWDC 7.05.080, Public notice) has expired.

(2) For nonexempt proposals which require Board of Commissioners review, the DNS or final EIS shall accompany the staff report to the Board. [Res. 2653 § 8, 2015].

7.05.080 Public notice.

(1) The District shall give public notice of application and threshold determinations for proposed nonexempt actions as follows:

(A) Notice for project actions shall be provided by the following methods:

(i) For site-specific projects associated with a parcel, a notice shall be posted at each street frontage. If the site is submerged or if there is no street frontage associated with the parcel, the notice shall be posted as close as possible to the subject site within the public right-of-way or a District easement;

(ii) For projects within the public right-of-way, one notice shall be posted at each endpoint plus one additional notice in equal intervals per 1,000 feet at or above 2,000 lineal feet of public right-of-way included in the project area. The notice shall be located either within the public right-of-way or within a District easement;

(iii) Posted in the public lobby of the District’s administration and maintenance buildings;

(iv) Mailed to property owners within 1,000 feet of the proposed project;

(v) Mailed, either physically or electronically, to affected jurisdictions;

(vi) Published on the District’s website; and

(vii) Published in the Herald (Everett).

(B) Notice for nonproject actions shall be provided by the following methods:

(i) Posted in the public lobby of the District’s administration and maintenance buildings;

(ii) Mailed, either physically or electronically, to affected jurisdictions;

(iii) Published on the District’s website; and

(iv) Published in the Herald (Everett).

(C) For nonexempt actions where a determination of significance is issued under WAC 197-11-360(3), the scoping procedures for the proposal shall be included as required in WAC 197-11-408.

(2) Notice of Application.

(A) Within 10 business days of determining whether all of the required information is provided, the District shall issue a notice of application to the public, other agencies, and District departments. If, prior to issuing this notice, the District has determined that a determination of significance will be issued for the application, this notice will be combined with the determination of significance and scoping notice.

(B) Notice of application shall be provided to all parties, jurisdictions, and locations identified in subsection (1)(A) of this section and the applicant.

(C) The notice of application shall contain, at a minimum:

(i) The date of application;

(ii) The date the District determined all of the required information was provided;

(iii) The date of the issuance of the notice of application;

(iv) The date of the close of the comment period, a minimum of 14 calendar days after issuance of the notice of application;

(v) A description of the proposal, including location;

(vi) A list of related permits, if any;

(vii) A list of any studies required, if any;

(viii) The location where documents on the proposed project may be reviewed;

(ix) Contact information for the responsible official or his/her designee;

(x) A statement of the right of any person to comment on the application, receive notice of and participate in any hearings, and request a copy of the decision once made; and

(xi) The date, time, place, and type of public hearing or informal meeting, if applicable and if scheduled at the date of the notice of application.

(3) Notice of Threshold Determination.

(A) Within three business days of completing the threshold determination, the District shall issue a notice of threshold determination to parties of record and other agencies.

(B) Notice of threshold determination shall be provided only to those parties which participated in the decision, affected agencies, and the applicant.

(C) The notice of threshold determination shall contain, at a minimum:

(i) The date of the threshold determination;

(ii) The date of the issuance of the notice of threshold determination;

(iii) The dates of the comment period, if any;

(iv) The dates of the applicable appeal period;

(v) A description of the proposal, including location;

(vi) A statement indicating the type of determination or denial of the proposal;

(vii) A statement of any conditions or mitigations included as part of the threshold determination;

(viii) A statement of appeal rights, if any;

(ix) Contact information for the responsible official or his/her designee; and

(x) The location where the complete determination and any supporting documents can be reviewed.

(4) During the public comment period for any notice, the public may comment in writing on the application, including the possible impact of the proposal on the environment. Such comments shall become part of the record of the application. Persons or entities which provide such comment shall be considered “parties of record” and shall be provided with notice of the final determination. [Res. 2653 § 9, 2015].

7.05.090 Categorical exemptions.

(1) The responsible official shall determine whether the project proposal is exempt.

(2) In determining whether or not a proposal is exempt, the responsible official shall make sure the proposal is properly defined and identify any governmental licenses or permits required. If a proposal includes exempt and nonexempt actions, the responsible official shall determine the lead agency, even if the action that triggers the license or permit is exempt.

(3) If a proposal includes a series of actions physically or functionally related to each other, the responsible official shall consider the entire series as a whole.

(4) If the proposal includes a series of exempt actions which are physically or functionally related to each other and which together may have a significant environmental impact, the proposal is not exempt.

(5) The determination that a proposal is exempt is final. An environmental checklist is not required for exempt proposals. A written determination that a proposal is exempt shall be part of the record of the application.

(6) The District adopts by reference the thresholds in Chapter 197-11 WAC. When a proposal is located in a city or county where such jurisdiction has raised the categorical exemption levels above those adopted by the District, the thresholds adopted by such jurisdiction shall prevail. This applies whether the District or another jurisdiction is serving as lead agency. [Res. 2653 § 10, 2015].

7.05.100 Emergency actions.

Any action which must be undertaken immediately or within a time period too short to allow full compliance with the provisions of these SEPA Rules shall be exempt from the procedural requirements of SEPA and these SEPA Rules when, in the judgment of the responsible official, such action is necessary to:

(1) Avoid an imminent threat to public health or safety;

(2) Prevent an imminent danger to public or private property; and/or

(3) Prevent an imminent threat of serious environmental degradation.

Any such action shall be documented in the project file, including a description of circumstances and the proposal, as well as what considerations have been made to mitigate environmental impacts. [Res. 2653 § 11, 2015].

7.05.110 Environmental impact statements.

(1) If an environmental impact statement (EIS) is required, the applicant shall be notified immediately after completion of the threshold determination and the District may initiate transfer of lead agency status to a jurisdiction with authority if lead agency status has not yet been determined.

(2) For a District-sponsored proposal, the draft and final EIS shall be prepared by either the responsible official or his designee. The responsible official shall assure that the EIS is prepared in a responsible manner and with appropriate methodology. The responsible official shall direct the areas of research and examination to be undertaken, as well as the organization of the resulting document.

(3) The EIS shall be approved by the responsible official prior to distribution. [Res. 2653 § 12, 2015].

7.05.120 Environmental review.

(1) Environmental review of project and nonproject proposals shall be completed on a case-by-case basis by the responsible official.

(2) Agency procedures shall specify the type and timing of environmental documents that shall be submitted to planning commissions and similar advisory bodies (WAC 197-11-906). [Res. 2653 § 13, 2015].

7.05.130 Appeals.

(1) Any agency or person may appeal a threshold determination, a determination of the adequacy of a final EIS, or the conditioning or denial of a requested action made by a nonelected District official pursuant to the procedures set forth in this section. No other SEPA appeal shall be allowed.

(2) All SEPA appeals must be filed in writing with the responsible official either:

(A) Within 14 calendar days after the date of issuance of a notice of decision if a comment period is not designated in the threshold determination; or

(B) Within 21 calendar days after the date of issuance of a notice of decision if a comment period is designated in the threshold determination.

(3) All appeals shall:

(A) Identify the decision being appealed;

(B) Provide a summary of the grounds for the appeal; and

(C) Describe the manner in which the person or person’s property is adversely affected by the decision, if applicable.

(4) The appeal shall be accompanied by the processing fee, as set forth in the currently adopted fees and charges.

(5) On receipt of a timely notice of appeal and the appeal fee, the responsible official shall advise the Board of Commissioners of the pending appeal and the Board of Commissioners shall set a date to hear the appeal. The appeal shall be considered no later than 30 calendar days after filing the appeal.

(6) Appeals shall be heard in an open record public hearing. All relevant evidence shall be received during the hearing of the appeal. Appeals shall be considered de novo and limited to the issues cited in the written notice of appeal. The procedural determination by the responsible official shall carry substantial weight in any appeal proceeding.

(7) The Board of Commissioners may postpone or continue a hearing for cause, but shall not grant requests for postponement or continuance of an appeal hearing to allow an applicant to proceed with an alternate proposal under separate application, unless all parties to the appeal agree in writing.

(8) For any appeal under this section, the District shall provide the following within 14 calendar days of the conclusion of the hearing:

(A) Original proposal with SEPA documents;

(B) Findings and conclusions;

(C) Testimony under oath; and

(D) A taped or written transcript of the open record hearing.

(9) In an appeal, the determination of the responsible official shall be entitled to substantial weight.

(10) The decision of the Board of Commissioners on the SEPA appeal shall be final, with no additional administrative appeal.

(11) An aggrieved party shall exhaust these administrative remedies before seeking judicial review. Upon filing of a judicial appeal, any certified copies or written transcripts required for such shall be prepared by the District at the expense of the appellant. [Res. 2653 § 14, 2015].