Chapter 20.04
STATE ENVIRONMENTAL POLICY ACT

Sections:

20.04.010    STATUTORY AUTHORITY.

20.04.020    PURPOSE OF ARTICLE II - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.030    ADDITIONAL DEFINITIONS.

20.04.040    RESPONSIBLE OFFICIAL - DESIGNATION AND RESPONSIBILITY.

20.04.050    LEAD AGENCY - DETERMINATION AND RESPONSIBILITIES.

20.04.060    LEAD AGENCY - TRANSFER OF STATUS TO A STATE AGENCY.

20.04.070    TIME LIMITS APPLICABLE TO THE SEPA PROCESS - ADDITIONAL CONSIDERATIONS.

20.04.080    ADDITIONAL TIMING CONSIDERATIONS.

20.04.090    PURPOSE OF ARTICLE III - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.100    USE OF CATEGORICAL EXEMPTIONS.

20.04.110    ENVIRONMENTAL CHECKLIST.

20.04.120    MITIGATED DNS.

20.04.130    PURPOSE OF ARTICLE IV - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.140    PREPARATION OF EIS - ADDITIONAL CONSIDERATIONS.

20.04.150    ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.160    PUBLIC NOTICE REQUIREMENTS.

20.04.170    DESIGNATION OF OFFICIAL TO PERFORM CONSULTED AGENCY RESPONSIBILITIES FOR THE CITY.

20.04.180    PURPOSE OF ARTICLE VI - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.190    PURPOSE OF ARTICLE VII - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.200    SUBSTANTIVE AUTHORITY.

20.04.205    PLANNED ACTIONS.

20.04.210    APPEALS.

20.04.220    NOTICE OF ACTION - STATUTE OF LIMITATIONS.

20.04.230    PURPOSE OF ARTICLE VIII - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.240    ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.250    PURPOSE OF ARTICLE X - ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.260    ENVIRONMENTALLY SENSITIVE AREAS.

20.04.270    FEES.

20.04.280    ADOPTION OF WAC PROVISIONS BY REFERENCE.

20.04.010 STATUTORY AUTHORITY.

The City adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA Rules, WAC 197-11-904. This chapter contains the City’s SEPA procedures and policies. The SEPA Rules, Chapter 197-11 WAC, must be used in conjunction with this chapter. The City also designates and adopts by reference the following policies and regulations as the basis for the City’s exercise of authority pursuant to this chapter: Comprehensive Plan, Capital Facilities Comprehensive Plans, and the Bremerton Municipal Code including but not limited to: Title 6 (Health and Sanitation), Title 11 (Streets and Rights-of-Way), Title 15 (Municipal Utilities), Title 17 (Buildings and Construction), and Title 20 (Land Use). (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 5187 §1, 2012: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 1 §A, 1984)

20.04.020 PURPOSE OF ARTICLE II - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains the basic requirements that apply to the SEPA process. The City adopts the following sections of Chapter 197-11 of the Washington Administrative Code by reference:

WAC 197-11-040 - Definitions.

050    Lead agency.

055    Timing of the SEPA process.

060    Content of environmental review.

070    Limitations on actions during SEPA process.

080    Incomplete or unavailable information.

090    Supporting documents.

100    Information required of applicants.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §A, 1984)

20.04.030 ADDITIONAL DEFINITIONS.

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

(a)    "DEIS" means draft environmental impact statement. See WAC 197-11-405.

(b)    "Department" means any division, subdivision or organizational unit of the City established by ordinance, rule or order.

(c)    "DNS" means determination of nonsignificance. See WAC 197-11-734.

(d)    "DS" means determination of significance. See WAC 197-11-736.

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

(f)    "EIS" means environmental impact statement. See, generally, WAC 197-11-400.

(g)    "FEIS" means final environmental impact statement. See WAC 197-11-405.

(h)    "Ordinance" means the ordinance, resolution or other procedure used by the City to adopt regulatory requirements.

(i)    "SEIS" means supplemental environmental impact statement. See WAC 197-11-405.

(j)    "SEPA rules" means Chapter 197-11 WAC, adopted by the Department of Ecology. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §B, 1984)

20.04.040 RESPONSIBLE OFFICIAL - DESIGNATION AND RESPONSIBILITY.

(a)    For the proposals for which the City is the lead agency, the responsible official shall be the Director or their appointed designee.

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

(c)    The City shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.56 RCW, Public Records Act. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §C, 1984)

20.04.050 LEAD AGENCY -DETERMINATION AND RESPONSIBILITIES.

(a)    The department within the City receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and WAC 197-11-922 through 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.

(b)    When the City is the lead agency for a proposal, the department receiving the application shall refer the proposal to the responsible official, who shall supervise compliance with the threshold determination requirements, and if an EIS is necessary, shall supervise preparation of the EIS.

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

(d)    If the City or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within fifteen (15) days of receipt of the determination, or the City must petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fifteen (15) day time period. Any such petition on behalf of the City may be initiated by the Director.

(e)    The City 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. The City may assume lead agency status in accordance with WAC 197-11-948.

(f)    In making a lead agency determination for a private project the City shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal, i.e., which agencies require nonexempt licenses. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §D, 1984)

20.04.060 LEAD AGENCY - TRANSFER OF STATUS TO A STATE AGENCY.

For any proposal for a private project where the City would be the lead agency and for which one or more state agencies have jurisdiction, the City’s 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 City shall be an agency with jurisdiction. To transfer lead agency duties, the City’s responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the City shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §E, 1984)

20.04.070 TIME LIMITS APPLICABLE TO THE SEPA PROCESS - ADDITIONAL CONSIDERATIONS.

For project permits, see Chapter 20.02 BMC. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §F, 1984)

20.04.080 ADDITIONAL TIMING CONSIDERATIONS.

(a)    A final threshold determination or final EIS shall normally precede or accompany the final staff recommendation, if any, in a quasi-judicial proceeding on a nonexempt application by the Administrative Hearing Examiner.

(b)    For nonexempt legislative proposals, the DNS or draft EIS or other threshold determination and SEPA environmental documentation for the proposal shall accompany the City’s staff recommendation to the appropriate advisory body, such as the Planning Commission.

(c)    If the City’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 City conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 2 §G, 1984)

20.04.090 PURPOSE OF ARTICLE III - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains the rules for deciding whether a proposal has a "probable significant, adverse environmental impact" requiring an environmental impact statement (EIS) to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. The City adopts the following sections of Chapter 197-11 WAC by reference, as supplemented in this part:

WAC 197-11-300 - Purpose of this part.

305    Categorical exemptions.

310    Threshold determination required.

315    Environmental checklist.

330    Threshold determination process.

335    Additional information.

340    Determination of nonsignificance (DNS).

350    Mitigated DNS.

360    Determination of significance (DS)/initiation of scoping.

390    Effect of threshold determination.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 3 §A, 1984)

20.04.100 USE OF CATEGORICAL EXEMPTIONS.

(a)    Whenever a department within the City receives an application for a license or, in the case of governmental proposals, the department within the City initiates the proposal, the Planning Department shall determine whether the license and/or the proposal is exempt. The Planning Department’s determination that a proposal is exempt shall be final and not subject to administrative review. If a proposal is exempt, none of the procedural requirements of this chapter apply to the proposal. The City shall not require completion of an environmental checklist for an exempt proposal.

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

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

(1)    The City 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 alternatives;

(2)    The responsible official may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

(3)    The responsible official may withhold approval of exempt actions 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.

(d)    Threshold Levels for Categorical Exemptions. Pursuant to WAC 197-11-800(1)(c) and (1)(d), cities may adopt raised levels of threshold exemptions for certain types of actions, except as provided in WAC 197-11-305 and 197-11-800(1)(a). As authorized pursuant to WAC 197-11-800(1)(c) and (1)(d), the following threshold exemptions are adopted:

(1)    The construction or location of thirty (30) or fewer single-family residential units.

(2)    The construction or location of sixty (60) or fewer multifamily residential units.

(3)    The construction of an office, school, commercial, recreational, service or storage building with thirty thousand (30,000) square feet of gross floor area, and with associated parking facilities designed for ninety (90) parking spaces.

(4)    The construction of a parking facility designed for ninety (90) parking spaces.

(5)    Any landfill or excavation of one thousand (1,000) cubic yards throughout the lifetime of the fill or excavation, and any fill or excavation classified as Class I, II, or III forest practice under RCW 76.09.050 or regulations thereunder. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 5222 §2, 2013: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 3 §B, 1984)

20.04.110 ENVIRONMENTAL CHECKLIST.

(a)    A completed environmental checklist (or a copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate or other approval not specifically exempted in this chapter; except, a checklist is not needed if the City and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The City shall use the environmental checklist to determine the lead agency and, if the City is the lead agency, for determining the responsible official and for making the threshold determination.

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

(c)    The City may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

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

(2)    The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 3 §C, 1984)

20.04.120 MITIGATED DNS.

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

(b)    An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency, and precede the City’s actual threshold determination for the proposal.

(c)    The responsible official should respond to the request for early notice within ten (10) working days. The response shall be written; state whether the City currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that are leading the City to consider a DS; and state that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

(d)    As much as possible, the City should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

(e)    When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the City shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen (15) days of receiving the changed or clarified proposal; if the City indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the City shall issue and circulate a determination of nonsignificance under WAC 197-11-340(2); if the City indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the City shall make the threshold determination, issuing a DNS or DS as appropriate; 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 two hundred (200) foot stormwater retention pond at Y location" are adequate; mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

(f)    A mitigated DNS is issued under WAC 197-11-340(2), requiring a fifteen (15) day comment period and public notice. The optional DNS process may be used in WAC 197-11-355 to combine the SEPA comment period with the notice of application comment period, if any, for the underlying permit. If a notice of application is not required for the underlying permit, the SEPA comment period shall follow issuance of the DNS and shall be concluded prior to the decision on the underlying action.

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

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

(i)    The City’s written response under subsection (b) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the City to consider the clarification or changes in its threshold determination. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 3 §D, 1984)

20.04.130 PURPOSE OF ARTICLE IV - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains the rules for preparing environmental impact statements. The City adopts the following sections of Chapter 197-11 WAC by reference, as supplemented by this part:

WAC 197-11-400 - Purpose of EIS.

402    General requirements.

405    EIS types.

406    EIS timing.

408    Scoping.

410    Expanded scoping.

420    EIS preparation.

425    Style and size.

430    Format.

435    Cover letter or memo.

440    EIS contents.

442    Contents of EIS on nonproject proposals.

443    EIS contents when prior nonproject EIS.

444    Elements of the environment.

448    Relationship of EIS to other considerations.

450    Cost-benefit analysis.

455    Issuance of DEIS.

460    Issuance of FEIS.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 4 §A, 1984)

20.04.140 PREPARATION OF EIS - ADDITIONAL CONSIDERATIONS.

(a)    Preparation of draft and final EIS and SEIS is the responsibility of the Planning Department under the direction of the responsible official. Before the City issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

(b)    The DEIS and FEIS or draft and final SEIS shall be prepared by City staff, or by a consultant selected by the City, or the applicant, as determined by the responsible official. If the applicant is required to prepare the EIS, the applicant shall select a consultant subject to approval of the responsible official. Said individual or firm shall have demonstrated expertise relevant to the information required for the EIS. If the responsible official requires an EIS for a proposal and determines that someone other than the City will prepare the EIS, the responsible official shall notify the applicant within five (5) working days of completion of the threshold determination. The responsible official shall also notify the applicant of the City’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

(c)    The City may require an applicant to provide information the City does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the City may request under another ordinance or statute.) (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 4 §B, 1984)

20.04.150 ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains rules for consulting, commenting and responding on all environmental documents under SEPA, including rules for public notice and hearings. The City adopts the following sections of Chapter 197-11 WAC by reference:

WAC 197-11-500 - Purpose of this part.

502    Inviting comment.

504    Availability and cost of environmental documents.

508    SEPA register.

535    Public hearings and meetings.

545    Effect of no comment.

550    Specificity of comments.

560    FEIS response to comments.

570    Consulted agency costs to assist lead agency.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 5 §A, 1984)

20.04.160 PUBLIC NOTICE REQUIREMENTS.

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

(1)    If public notice is required for a nonexempt license, the City shall state whether a DS or DNS has been issued and a DS notice when comments are due;

(2)    If no public notice is required for the nonexempt proposal, the City shall give notice of the DNS or DS by publishing notice in a newspaper of general circulation in the county, City or general area where the proposal is located;

(3)    Whenever the City issues a DS under WAC 197-11-360(3), the City shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice.

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

(1)    Indicating the availability of the DEIS in any public notice required for a nonexempt license;

(2)    Publishing notice in a newspaper of general circulation in the county, City or general area where the proposal is located.

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

(d)    The City may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 5 §B, 1984)

20.04.170 DESIGNATION OF OFFICIAL TO PERFORM CONSULTED AGENCY RESPONSIBILITIES FOR THE CITY.

(a)    The Director shall be responsible for preparation of written comments for the City in response to a consultation request prior to a threshold determination, participation in scoping and reviewing a draft EIS.

(b)    The Director shall be responsible for the City’s compliance with WAC 197-11-550 whenever the City is a consulted agency, and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the City. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 5 §C, 1984)

20.04.180 PURPOSE OF ARTICLE VI - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the City’s own environmental compliance. The City adopts the following sections of Chapter 197-11 WAC by reference:

WAC 197-11-600 - When to use existing environmental documents.

610    Use of NEPA documents.

620    Supplemental environmental impact statement - Procedures.

625    Addenda - Procedures.

630    Adoption - Procedures.

635    Incorporation by reference - Procedures.

640    Combining documents.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 6 §A, 1984)

20.04.190 PURPOSE OF ARTICLE VII - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The City adopts the following sections of Chapter 197-11 WAC by reference:

WAC 197-11-650 - Purpose of this part.

655    Implementation.

660    Substantive authority and mitigation.

680    Appeals.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 7 §A, 1984)

20.04.200 SUBSTANTIVE AUTHORITY.

(a)    The policies and goals set forth in this chapter are supplementary to those in the existing SEPA authorization of the City.

(b)    The City may attach conditions to a permit or approval for a proposal so long as:

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

(2)    Such conditions are in writing; and

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

(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 (d) of this section and cited in the license or other decision document.

(c)    The City may deny a permit or approval for a proposal on the basis of SEPA so long as:

(1)    A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a final EIS or final supplemental EIS prepared pursuant to this chapter; 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)    The City designates and adopts by reference the following policies as the basis for the City’s exercise of authority pursuant to this section:

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

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

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

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

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

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

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

(vii)    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)    Applications not requiring a final decision by the City Council that are conditioned or denied on the basis of SEPA by a nonelected official shall be appealable to the Administrative Hearing Examiner pursuant to Chapter 2.13 BMC. Such appeal may be perfected by appellant by giving notice to the responsible official within fourteen (14) days of the decision being appealed. The hearing before the Hearing Examiner shall be an open-record appeal. However, the decision of the SEPA Official shall be presumed correct. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 4798, Amended, 05/10/2002; Ord. 4778, Amended, 11/05/2001; Ord. 3934 Art. 7 §B, 1984)

20.04.205 PLANNED ACTIONS.

The City adopts by reference and codifies in this chapter the State Environmental Policy Act (SEPA) rules, WAC 197-11-164, 197-11-168, and 197-11-172, that establish the definitions, procedures, and project review requirements for planned actions. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 5187 §2, 2012)

20.04.210 APPEALS.

(a)    The City establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

(1)    Project Permits. Any agency or person may appeal the City’s procedural compliance with Chapter 197-11 WAC for issuance of the following (the appeal must be made to the Administrative Hearing Examiner within fourteen (14) days of the date of issuance). A decision involving a SEPA determination of nonsignificance which required public comments shall have the appeal period extended an additional seven (7) days:

(i)    A final DNS;

(ii)    A DS; or

(iii)    A final EIS.

(2)    Legislative Proposals. There is no administrative appeal of a DNS, DS or final EIS adequacy associated with a legislative decision.

(3)    For any administrative appeal under this section, the City shall provide for a record that shall consist of the following:

(i)    Findings and conclusions;

(ii)    Testimony under oath; and

(iii)    A taped or written transcript.

(4)    The procedural determination by the City’s responsible official shall carry substantial weight in any appeal proceeding.

(b)    The City shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4977 §4, 2006; Ord. 4950 §5 (part), 2005: Ord. 4778, Amended, 11/05/2001; Ord. 3934 Art. 7 §C, 1984)

20.04.220 NOTICE OF ACTION - STATUTE OF LIMITATIONS.

(a)    The City, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

(b)    The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the City Clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 7 §D, 1984)

20.04.230 PURPOSE OF ARTICLE VIII - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains uniform usage and definitions of terms under SEPA. The City adopts the following sections of Chapter 197-11 WAC by reference, as supplemented by WAC 173-806-040:

WAC 197-11-700 - Definitions.

702    Act.

704    Action.

706    Addendum.

708    Adoption.

710    Affected tribe.

712    Affecting.

714    Agency.

716    Applicant.

718    Built environment.

720    Categorical exemption.

722    Consolidated appeal.

724    Consulted agency.

728    County.

730    Decision maker.

732    Department.

734    Determination of nonsignificance (DNS).

736    Determination of significance (DS).

738    EIS.

740    Environment.

742    Environmental checklist.

744    Environmental document.

746    Environmental review.

748    Environmentally sensitive area.

750    Expanded scoping.

752    Impacts.

754    Incorporation by reference.

756    Lands covered by water.

758    Lead agency.

760    License.

762    Local agency.

764    Major action.

766    Mitigated DNS.

768    Mitigation.

770    Natural environment.

774    Nonproject.

776    Phased review.

778    Preparation.

780    Private project.

782    Probable.

784    Proposal.

786    Reasonable alternative.

790    SEPA.

792    Scope.

793    Significant.

796    State agency.

797    Threshold determination.

799    Underlying governmental action.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 8 §A, 1984)

20.04.240 ADOPTION OF WAC PROVISIONS BY REFERENCE.

The City adopts sections of Chapter 197-11 WAC by reference, the following rules for categorical exemptions, as supplemented in this chapter, including Section B (Use of exemptions), and WAC 173-806-190 (Environmentally sensitive areas):

WAC 197-11-800 - Categorical exemptions.

880    Emergencies.

890    Petitioning DOE to change exemptions.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 9 §A, 1984)

20.04.250 PURPOSE OF ARTICLE X - ADOPTION OF WAC PROVISIONS BY REFERENCE.

This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The City adopts the following sections of Chapter 197-11 WAC by reference and this article:

WAC 197-11-900 - Purpose of this part.

902    Agency SEPA policies.

916    Application to ongoing actions.

920    Agencies with environmental expertise.

922    Lead agency rules.

924    Determining the lead agency.

926    Lead agency for governmental proposals.

928    Lead agency for public and private proposals.

930    Lead agency for private projects with one agency with jurisdiction.

932     Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a City.

934    Lead agency for private projects requiring licenses from a local agency, not a county and one or more state agencies.

936    Lead agency for private projects requiring licenses from more than one state agency.

938    Lead agencies for specific proposals.

940    Transfer of lead agency status to a state agency.

942    Agreements on lead agency status.

944    Agreements on division of lead agency duties.

946    DOE resolution of lead agency disputes.

948    Assumption of lead agency status.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 10 §A, 1984)

20.04.260 ENVIRONMENTALLY SENSITIVE AREAS.

(a)    The Director shall designate environmentally sensitive areas under the standards of WAC 197-11-908, and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the Planning Department and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.

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

(c)    Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 10 §B, 1984)

20.04.270 FEES.

The City shall require fees for its activities in accordance with the provisions of this chapter. Those fees shall be established, from time to time, by City Council resolution. (Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 10 §C, 1984)

20.04.280 ADOPTION OF WAC PROVISIONS BY REFERENCE.

The City adopts the following forms and selections by reference:

WAC 197-11-960 - Environmental checklist.

965    Adoption notice.

970    Determination of nonsignificance (DNS).

980    Determination of significance and scoping notice (DS).

985    Notice of assumption of lead agency status.

990    Notice of action.

(Ord. 5301 §3 (Exh. B) (part), 2016: Ord. 4950 §5 (part), 2005: Ord. 3934 Art. 11 §A, 1984)