Section 40.570.080

40.570.080 SEPA and County Decisions

A. Purpose of This Section and Adoption by Reference.

This section contains the rules and policies for exercising SEPA’s substantive authority, which means to condition or deny proposals based on SEPA. This section also contains procedures for appealing SEPA determinations. The county adopts the following sections of the SEPA Rules by reference, as supplemented in this section:

WAC

197-11-650 Purpose of this part

197-11-655 Implementation

197-11-660 Substantive authority and mitigation

197-11-680 Appeals

B. Substantive Authority.

1. The policies and goals set forth in this chapter are supplementary to those in the existing authorizations of Clark County.

2. Subject to RCW 43.21C.060 and 43.21C.240, the county may attach conditions to a permit or approval for a proposal so long as:

a. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this chapter;

b. Such conditions are in writing;

c. The mitigation measures included in such conditions are reasonable and capable of being accomplished;

d. The county has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

e. Such conditions are based on one (1) or more policies in Section 40.570.080(C) and cited in the license or other decision document.

3. Subject to RCW 43.21C.060 and 43.21C.240, the county may deny a permit or approval for a proposal on the basis of SEPA so long as:

a. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in an FEIS or final SEIS prepared pursuant to this chapter;

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

c. The denial is based on one (1) or more policies identified in Section 40.570.080(C) and identified in writing in the decision document.

C. SEPA Policies.

The county designates the following general policies as the basis for county’s exercise of authority pursuant to this chapter:

1. 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 county 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 Clark County 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 healthy environment, and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

3. The county designates the following policies applicable to the major elements and selected subelements of the environment as defined by WAC 197-11-444, and incorporates by reference the policies in the cited county codes, ordinances, resolutions and plans, and all amendments to them in effect prior to the date of application of any building permit or preliminary plat, or prior to issuance of a DNS or DEIS for any other action:

a. Earth. It is the county’s policy to avoid or minimize adverse impacts from ground-disturbing activities and land use changes within areas of steep or unstable slopes, areas with severe soil limitations, areas most susceptible to earthquake damage, and areas of erosion potential. The following code provisions offer more specific policies:

(1) Chapter 40.386, Stormwater and Erosion Control;

(2) Chapter 40.430, Geologic Hazard Areas Regulations;

(3) Chapter 14.07, Grading, Excavation, Fill, and Stockpile; and

(4) Section 40.250.022, Surface Mining Overlay District.

b. Air. It is the county’s policy to maintain and enhance air quality in the community. The county generally defers to the Southwest Clean Air Agency (SWCAA) on matters of stationary sources of air pollution, while supporting the Regional Transportation Council (RTC) in the reduction of mobile sources of air pollution. It is the county’s policy to require air quality analyses for proposed developments when recommended by SWCAA or RTC. In addition to compliance with the standards and requirements of the following code provisions, it is also the county’s policy to further mitigate the generation of dust and odors from land use activities through the local permitting process:

(1) Section 40.200.010, Purpose;

(2) Section 40.230.085(E)(2) and (3), Employment districts;

(3) Section 40.230.050(D)(5), University district;

(4) Section 40.250.022, Surface Mining Overlay District;

(5) Sections 40.260.040 (Animal Feed Yards, Animal Sales Yards, Animal Boarding Facilities, Animal Day Use Facilities, and Equestrian Facilities) and 40.260.170 (Private Use Landing Strips for Aircraft and Heliports);

(6) Section 40.340.010, Parking, Loading and Circulation;

(7) Section 40.260.200(F)(2)(e) and (f), Solid Waste Handling and Disposal Sites.

(Amended: Ord. 2012-12-14)

c. Water. It is the county’s policy to conserve and protect the quality, quantity and functional value of surface waters, wetlands, floodplains, and groundwater by enforcing the following code provisions and resolutions and through the imposition of other reasonable measures, including monitoring and hydrologic studies of surface and groundwaters, to mitigate water-related impacts; provided, that minor new construction including the construction, reconstruction or expansion of single-family residences or accessory residential structures on pre-existing lots containing wetlands shall only be subject to State Environmental Policy Act mitigation measures where clearly necessary to prevent or lessen identified and significant environmental degradation:

(1) Chapter 40.386, Stormwater and Erosion Control;

(2) Chapter 40.450, Wetland Protection;

(3) Chapter 40.410, Critical Aquifer Recharge Areas;

(4) Chapter 40.420, Flood Hazard Areas;

(5) Section 40.250.022, Surface Mining Overlay District;

(6) Chapter 40.460, Shoreline Overlay District;

(7) Chapter 40.370, Sewer and Water;

(8) Chapter 24.17, On-Site Sewage Systems Rules and Regulations;

(9) Chapter 24.12, Solid Waste Management;

(10) Resolution No. 1991-07-35, coordinated water system plan;

(11) Resolution No. 1994-03-16, groundwater management plan.

d. Plants and Animals. It is the county’s policy to recognize the valuable functions provided by vegetation, and to mitigate impacts resulting from removal or replacement of vegetation. It is also the county’s policy to preserve sensitive wildlife habitat areas and to conserve priority habitat areas, while also providing generally for wildlife habitat and corridors in the development review process where practicable. The county recognizes that some disruption of animal habitat and plant species is unavoidable and inevitable. In addition to implementing the following code provisions, it is further the county’s policy to provide special protection for rare, threatened and endangered plant species, and for habitat of rare, threatened or endangered species of fish and wildlife:

(1) Title 7, Weed Control Code;

(2) Title 8, Animals;

(3) Chapter 40.386, Stormwater and Erosion Control;

(4) Chapter 40.450, Wetland Protection;

(5) Chapter 40.440, Habitat Conservation;

(6) Chapter 15.13, Wildland Urban Interface/Intermix Ordinance;

(7) Section 40.210.010, Forest, Agriculture and Agriculture/Wildlife District, Section 40.210.010(A);

(8) Chapter 40.460, Shoreline Overlay District;

(9) Chapter 40.320, Landscaping and Screening.

e. Energy and Natural Resources. It is the county’s policy to promote energy conservation measures, including the use of solar energy. The county recognizes the importance of electric, natural gas, oil and wood/pellet stoves in meeting energy needs, and supports the efforts of Clark Public Utilities in finding new sources of electric energy, including co-generation facilities and small hydroelectric projects; provided, that impacts associated with the development of these energy sources can be adequately mitigated. The following code provisions offer more specific policies regarding energy conservation:

(1) Chapter 14.05, International Building Code;

(2) Chapter 51-11 WAC, Washington State Energy Code;

(3) Section 40.200.010, Purpose;

(4) Section 40.220.010, Single-Family Residential Districts, Section 40.220.010(C);

(5) Section 40.520.080, Planned Unit Developments, Section 40.520.080(E)(1)(a)(2).

f. Environmental Health. It is the county’s policy to avoid or minimize environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, and release of hazardous material spills and wastes. Specific policies relating to the control of these hazards are contained throughout the following code provisions:

(1) Title 7, Weed Control Code;

(2) Title 8, Animals;

(3) Title 9, Public Peace, Safety and Morals;

(4) Title 10, Vehicles and Traffic;

(5) Title 12, Streets and Roads;

(6) Title 13, Public Works;

(7) Title 14, Buildings and Structures;

(8) Title 15, Fire Prevention;

(9) Title 24, Public Health;

(10) Title 40, Unified Development Code.

g. Noise. It is the county’s policy to minimize noise impacts associated with land use changes, including those related to existing sources of noise. To this end, it is the policy of the county to require that new sources of noise be limited to the maximum environmental noise levels of Chapter 173-60 WAC; even within these regulatory standards, an increase of more than five (5) decibels (dBA) over ambient noise levels at the receiving properties may be considered significant. It is further the county’s policy to encourage that sources of noise otherwise exempt from Chapter 173-60 WAC that may affect existing or proposed residential uses (e.g., traffic, discharge of firearms, utility installations, etc.) be mitigated to the standards thereof as a Class B source of noise (i.e., fifty-seven (57) dBA), and to require noise studies where necessary to assure that proposals address these policies. Additional noise policies are contained within the following code provisions:

(1) Section 8.11.060, Animal nuisances;

(2) Chapter 9.14, Public Disturbance Noises;

(3) Section 40.220.020, Residential Districts and Office Residential Districts, Sections 40.220.020(A)(1)(b) and (A)(2);

(4) Section 40.230.030, Office Campus District, Section 40.230.030(D)(7);

(5) Section 40.230.030, Business Park District, Section 40.230.030(D)(7);

(6) Section 40.230.080, Industrial Districts, Section 40.230.080(D);

(7) Section 40.230.050, University District, Section 40.230.050(C)(5)(a);

(8) Section 40.250.022, Surface Mining Overlay District;

(9) Section 40.520.040, Site Plan Review, Section 40.520.040(E)(2);

(10) Section 40.520.030, Conditional Use Permits, Section 40.520.030(E);

(11) Chapter 40.260, Special Uses and Standards, Sections 40.260.040 and 40.260.170;

(12) Section 40.260.200, Solid Waste Handling and Disposal Sites, Section 40.260.200(F)(2)(f);

(13) Chapter 40.510, Type I, II, III and IV Processes, Sections 40.510.010(C)(3), 40.510.020(D)(5) and 40.510.030(D)(7); and

(14) Chapter 24.12, Solid Waste Management, Section 24.12.270.

h. Land and Shoreline Use. It is the county’s policy to assure that an adequate supply of land exists for residential, commercial, industrial, recreational, natural resource use and open space needs. In addition to requiring compliance with the following code provisions and plan, it is further the policy of the county to assure that all reasonable measures are taken to maintain or promote compatibility among land and shoreline uses:

(1) Title 9, Public Peace, Safety and Morals;

(2) Title 10, Vehicles and Traffic;

(3) Chapter 13.20, Informational Signs;

(4) Chapter 40.440, Habitat Conservation;

(5) Chapter 14.05, International Building Code;

(6) Chapter 14.14A, Dangerous Building Code;

(7) Chapter 14.32A, Mobile Home Permits;

(8) Chapter 40.540, Boundary Line Adjustments and Land Division;

(9) Title 40, Unified Development Code;

(10) Comprehensive plan.

i. Aesthetics. It is the county’s policy to maintain and enhance the aesthetic quality of the community, including preservation of scenic views and vistas, and to avoid or minimize adverse impacts of light and glare or other visual impacts associated with land use changes. Additional policies related to aesthetics and community appearance are contained within the following code provisions and plan:

(1) Chapter 10.10, Truck and Trailer Parking on Residential Streets;

(2) Chapter 13.20, Informational Signs;

(3) Chapter 40.430, Geologic Hazard Areas Regulations;

(4) Title 40, Unified Development Code;

(5) Chapter 24.12, Solid Waste Management;

(6) Comprehensive plan.

j. Recreation. It is the county’s policy that recreational needs be met through acquisition of park sites, open space, trail corridors and impact fees in the development review process, including shoreline public access. It is also the policy of the county to maintain and enhance recreational opportunities in the community, and to encourage private recreational facilities; provided, that impacts associated with these facilities can be adequately mitigated. The following code provisions, resolutions and plan provide additional policies in this regard:

(1) Chapter 9.05, Park Rules;

(2) Chapter 9.12, Restricted Firearms Discharge;

(3) Chapter 9.17, Off-Road Vehicles;

(4) Chapter 14.20, Swimming Pools;

(5) Title 16, Boating;

(6) Section 40.540.050, Reservations – Park Sites;

(7) Title 40, Unified Development Code;

(8) Comprehensive plan;

(9) Resolution 1993-10-07, trails and bikeway system plan;

(10) Resolution 1994-06-18, comprehensive park, recreation, and open space plan.

k. Historic and Cultural Preservation.

(1) Purpose. It is the county’s policy to recognize and protect important historic and cultural resources, including those listed on the national, state and local registers of historic places; cultural resources inventoried by the State Archaeologist and Clark County; and as yet unrecorded sites, objects or structures.

(2) Definitions. For the purposes of this chapter, the following definitions shall apply:

Archaeological predetermination	“Archaeological predetermination” means a preliminary archaeological investigation of a project area which includes, but is not limited to, a review of archaeological databases, walking the site in a series of transects, and the use of shovel test probes of the subsurface as necessary. When archaeological deposits are identified, sufficient shovel test probe examination shall be conducted to determine whether the discovery meets the definition of an archaeological site in RCW 27.53.030. A Washington State Archaeological Site Inventory form shall be completed and submitted for the identified site.
Archaeological survey	“Archaeological survey” means a formal archaeological study that includes background research and adheres to the State Department of Archaeology and Historic Preservation (DAHP) survey and reporting standards. Additional testing and/or data recovery, if recommended, will require an Archaeological Excavation Permit from the Department of Archaeology and Historic Preservation.
Shovel test probe	“Shovel test probe” is defined as a cylindrical hand-dug vertical hole measuring fifty (50) centimeters in diameter and excavated to a depth of at least fifty (50) centimeters below ground surface.

(3) Applicability. The county adopts by this reference the statewide Archaeological Predictive Model and associated probability maps. The predictive model and probability maps may be periodically updated to reflect the best available information. Table 40.570.080-1 is based on the predictive model and maps, and shall be used to determine when an archaeological predetermination shall be required. The determinations within the table are further subject to the additional provisions in Section 40.570.080(C)(3)(k)(3)(a).

Table 40.570.080-1. Need for Predetermination
Predictive Model Map Designation		Potential for Impacts
Class	Probability Index	Low1	Moderate2	High3
1	1% – 20% } Low	No	No	No
2	21% – 40% } Low-Moderate	No	No	Yes
3	41% – 60% } Moderate	No	Yes	Yes
4	61% – 80% } Moderate-High	No	Yes	Yes
5	81% – 100% } High	No	Yes	Yes

1 Low potential impacts: Those activities involving no ground disturbance, normal maintenance and repair of existing structures and facilities, lands that have been substantially disturbed to a depth of more than eight (8) inches, and areas that have been adequately surveyed in the past with no discovery of resources.

2 Moderate potential impacts: Activities involving slight ground disturbance not otherwise characterized as having low or high impact potential.

3 High potential impacts: Activities involving disturbance of more than twelve (12) inches below the ground surface and more than ten thousand (10,000) square feet of area.

(a) Regardless of the probability map designation in Table 40.570.080-1, predeterminations shall be required as specified below:

(i) A predetermination shall be required for any high potential impact project located within one-quarter (1/4) mile of a recorded site.

(ii) A predetermination shall be required for any moderate through high potential impact project located within five hundred (500) feet of a known, but unregistered, site.

(4) Predeterminations. When required, a predetermination completed by a professional archaeologist shall be submitted to the DAHP for their review and approval. As part of a counter complete development application, the applicant shall submit proof via an e-mail confirmation or other conclusive method that the DAHP has received the site-specific document for review. If the DAHP required additional archaeological studies as a result of a prior predetermination, any such studies shall be completed, and proof shall be submitted that the DAHP has received the study prior to the submittal of a development application.

(5) Survey. An archaeological survey shall be required if the predetermination report calls for a survey, or is required by the DAHP, or upon discovery of an archaeological site during development of any permitted project.

(6) Mitigation Measures. An archaeological survey shall result in a report addressing the significance of cultural resources present on the site. The study shall include recommendations to mitigate impacts to the archaeological site consistent with WAC 25-48-020.

(7) If human remains are discovered, all work shall stop, and local law enforcement officials shall be notified immediately.

(8) It is further the county’s policy to consult with affected Native American interests in matters of cultural resource preservation. The following code provisions and plan policies also apply to historic and cultural resources:

(a) Chapter 14.07, Grading, and IBC Sections 106 and 3407;

(b) Section 40.250.030, Historic Preservation, and Rules and Procedures of the Clark County Heritage Commission;

(d) Chapter 8 of the Clark County Comprehensive Plan.

l. Transportation. It is the county’s policy to promote multimodal, safe and efficient transportation systems, including roads and highways, mass transit systems, trails and bikeways, and facilities for air, rail and water transport. In addition to complying with the following code provisions and plan, proposals that are likely to place significant demands on transportation facilities may be subject to transportation analyses in order to identify appropriate mitigation measures:

(1) Chapter 9.05, Park Rules;

(2) Chapter 9.17, Off-Road Vehicles;

(3) Title 10, Vehicles and Traffic;

(4) Title 12, Streets and Roads;

(5) Chapter 13.20, Informational Signs;

(6) Chapter 14.16, House and Street Numbering;

(7) Title 15, Fire Prevention;

(8) Title 16, Boating;

(9) Chapter 40.540, Boundary Line Adjustments and Land Division;

(10) Title 40, Unified Development Code; and

(11) Comprehensive plan, Chapter 5.

m. Public Services and Utilities. It is the county’s policy to require documentation of adequate levels of utility and public services necessary to support development proposals prior to their approval, including fire and police protection, water supply and sewage disposal, schools and parks, storm drainage, transportation facilities, solid waste disposal, and energy and telecommunication services. In addition to compliance with the following code provisions, resolutions and plan, it is also the county’s policy to require urban density developments to be served by sanitary sewer systems, and to require public water supplies for new developments with two (2) or more water service connections:

(1) Title 12, Streets and Roads;

(2) Title 13, Public Works;

(3) Title 15, Fire Prevention;

(4) Chapter 40.540, Boundary Line Adjustments and Land Division;

(5) Title 40, Unified Development Code;

(6) Title 24, Public Health;

(7) Title 36, Cable Television;

(8) Resolution 1991-07-35, coordinated water system plan;

(9) Resolution 1994-03-16, groundwater management plan;

(10) Resolution 1994-06-18, comprehensive park, recreation, and open space plan;

(11) Comprehensive plan, Chapter 6.

4. Through the project review process:

a. If the applicable regulations require studies that adequately analyze all of the project’s specific probable adverse environmental impacts, additional studies under this chapter will not be necessary on those impacts;

b. If the applicable regulations require measures that adequately address such environmental impacts, additional measures would likewise not be required under this chapter; and

c. If the applicable regulations do not adequately analyze or address a proposal’s specific probable adverse environmental impacts, this chapter provides the authority and procedures for additional review.

(Amended: Ord. 2006-05-01; Ord. 2006-09-13; Ord. 2007-11-13; Ord. 2009-01-01; Ord. 2009-03-02; Ord. 2012-07-03; Ord. 2013-06-15; Ord. 2015-11-24; Ord. 2016-09-04)

D. Appeals.

1. The appellate procedures provided for by RCW 43.21C.060, which provides for an appeal to a local legislative body of any decision by a non-elected official conditioning or denying a proposal under authority of SEPA, are formally eliminated. Clark County establishes the following administrative appeal procedures which are to be construed consistently with RCW 43.21C.075 and WAC 197-11-680:

a. All appeals under this title shall be in writing, filed with the responsible official and accompanied by an appellate fee pursuant to Chapter 6.110A; provided, no additional appellate fee shall be charged for appeals under this section filed in conjunction with an available administrative hearing on the underlying permit or approval.

b. Appeals under this section are limited to the following:

(1) The responsible official’s procedural compliance with SEPA and Chapter 197-11 WAC in issuing the following determinations or documents:

(a) Determination of nonsignificance (DNS),

(b) Determination of significance (DS),

(2) The conditioning or denial of a proposal under the authority of SEPA by a non-elected county official.

2. Appeals under this section shall be processed as follows:

a. Determination of Significance (DS). An appeal may only be made by the proposal applicant or sponsor, and shall be filed within fourteen (14) calendar days of the issuance of the DS/scoping notice. The appeal shall be heard and decided by a hearing examiner appointed pursuant to Chapter 2.51, whose decision shall be final and not subject to further administrative appeal.

b. Determination of Nonsignificance (DNS)/Environmental Impact Statement (EIS). An appeal may be filed by any agency or person in conjunction with the first nonexempt action on the proposal by a non-elected administrative official, as follows:

(1) For proposals which may be approved by an administrative official without public hearing, including but not limited to building permits, site plan approvals, floodplain permits, shoreline permits, grading permits, wetland permits, habitat conservation permits, short plats, mobile home parks and residential planned unit developments, SEPA appeals must be filed in conjunction with, and within the limitation period applicable to, an available administrative appeal of the applicable permit or approval; provided, that if no administrative appeal of the underlying administrative permit or approval is otherwise provided for, an appeal under this section shall be filed within fourteen (14) calendar days of the issuance of the permit or approval, and shall be heard and decided by a hearing examiner appointed pursuant to Chapter 2.51. The decision of the hearing examiner or other initial appeal body on the SEPA appeal shall be final and not subject to further administrative appeal.

(2) For proposals which may only be recommended for approval following a public hearing by the Planning Commission, including but not limited to comprehensive plan amendments and rezones, SEPA appeals shall be filed in writing with Council within fourteen (14) calendar days of issuance of said recommendation, which appeal shall be decided by Council in conjunction with its decision on the underlying recommendation.

(3) For proposals which may only be approved following a public hearing by the hearing examiner, including but not limited to rezones, conditional use permits, subdivisions, and mixed use planned unit developments, SEPA appeals of a procedural determination under SEPA shall be filed within fourteen (14) calendar days after a notice of SEPA determination. Such procedural and substantive SEPA appeal shall be decided by the examiner in conjunction with the examiner’s final order on the proposal. The examiner’s procedural SEPA decision is final and not subject to further administrative appeal.

c. Substantive SEPA Determination.

(1) For proposals subject to final administrative action by a non-elected administrative official or tribunal for which no administrative appeal is otherwise provided, any agency or person may appeal conditions or denials, or the failure to condition or deny, based upon substantive SEPA authority within fourteen (14) calendar days of the issuance of the administrative decision. Such appeal shall be heard and decided by a hearing examiner appointed pursuant to Chapter 2.51, whose decision shall be final and not subject to further administrative appeal. The examiner’s open record appeal hearing shall be held within ninety (90) days, unless parties to the appeal agree to extend this time period.

(2) For proposals subject to final administrative action by a non-elected administrative official or tribunal for which an administrative appeal is otherwise provided, any agency or person may appeal conditions or denials, or the failure to condition or deny, based upon substantive SEPA authority by utilizing such otherwise available administrative appeal process.

3. For any appeal under this subsection, the county shall provide for a record that shall consist of the following:

a. Findings and conclusions;

b. Testimony under oath; and

c. A taped or written transcript.

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

5. The county 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.

(Amended: Ord. 2019-05-07)