Chapter 16.04 STATE ENVIRONMENTAL POLICY ACT

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) “Department” means any division, subdivision or organizational unit of the town established by ordinance, rule or order.

(B) “Early notice” means the town’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures).

(D) “SEPA rules” means chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 216, Art. II (part), 1984).

16.04.040 WAC 173-806-040 – Designation of responsible official.

(Option 2) For public proposals, the head (administrative official) of the department making the proposal shall be the responsible official. For private proposals, the head (administrative official) of the department with private responsibility for approving the permits and licenses for the proposal shall be the responsible official. When multiple officials have permitting authority, the assignment of responsibility shall be reached by agreement.

(A) For all proposals for which the town is the lead agency, the mayor 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 WAC 173-806-020.

(B) The town shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. (Ord. 216, Art. II (part), 1984).

16.04.050 WAC 173-806-050 – Lead agency determination and responsibilities.

(A) The department within the town 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 WAC 197-11-940; unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

(B) When the town is the lead agency for a proposal, the department receiving the application shall determine 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 town is not the lead agency for a proposal, all departments of the town shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No town 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 town may conduct supplemental environmental review under WAC 197-11-600.

(D) If the town 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 days of receipt of the determination, or the town may petition the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fifteen-day time period. Any such petition on behalf of the town may be initiated by the mayor.

(E) Departments of the town are 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; provided, that the responsible official and any department that will incur responsibilities as the result of such agreement must approve the agreement.

(F) Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is, which agencies require nonexempt licenses?). (Ord. 216, Art. II (part), 1984).

16.04.060 WAC 173-806-053 – Transfer of lead agency status to a state agency.

For any proposal for a private project where the town would be the lead agency and for which one or more state agencies have jurisdiction, the town’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 town shall be an agency with jurisdiction. To transfer lead agency duties, the town’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 mayor of the town shall also give notice of the transfer to the private applicant and to any other jurisdiction over the proposal. (Ord. 216, Art. II (part), 1984).

16.04.070 WAC 173-806-055 – Additional considerations in time limits applicable to SEPA process.

The following time limits shall apply when the town processes licenses for all private projects and those governmental proposals submitted to the town by other agencies:

(A) When the town must initiate further studies, including field investigations, to obtain the information to make the threshold determination, the town should complete the studies within thirty days of receiving an adequate application and a completed checklist.

(B) The town shall complete threshold determinations on actions where the applicant recommends in writing that an EIS be prepared, because of the probably significant adverse environmental impact(s) described in the application, within fifteen days of receiving an adequate application and completed checklist. (Ord. 216, Art. II (part), 1984).

16.04.080 WAC 173-806-058 – Additional timing considerations.

(A) For nonexempt proposals, the DNS or final EIS for the proposal shall accompany the town’s staff recommendation to any appropriate advisory body, such as the planning commission.

(B) If the town’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 town conduct environmental review prior to submission of the detailed plans and specifications. The point at which environmental review may be initiated for specific permits or other licenses requiring detailed project plans and specifications is upon review of environmental checklist. (Ord. 216, Art. II (part), 1984).

III. CATEGORICAL EXEMPTIONS AND THRESHOLD DETERMINATIONS

16.04.090 WAC 173-806-065 – Purpose of this part and adoption by reference.

This part 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 part also contains rules for evaluating the impacts of proposals not requiring an EIS. The town adopts the following sections by reference, as supplemented in this article:

WAC

197-11-300 Purpose of this part.

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.

(Ord. 216, Art. III (part), 1984).

16.04.100 WAC 173-806-090 – 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 town and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The town shall use the environmental checklist to determine the lead agency and, if the town is the lead agency, for determining the responsible official and for making the threshold determination.

(B) The town 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 town 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. 216, Art. III (part), 1984).

16.04.110 WAC 173-806-100 – 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:

(1) Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

(2) Precede the town’s actual threshold determination for the proposal.

(C) The responsible official should respond to the request for early notice within fifteen (15) working days. The response shall:

(1) Be written;

(2) State whether the town currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that are leading the town 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) As much as possible, the town 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 town shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen days of receiving the changed or clarified proposal:

(1) If the town 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 town shall issue and circulate a determination of nonsignificance under WAC 197-11-340(2).

(2) If the town indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the town 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. For example, proposals to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200 foot stormwater retention pond at Y location” are adequate.

(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 mitigated DNS is issued under WAC 197-11-340(2), requiring a fifteen-day comment period and public notice.

(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 town.

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

(I) The town’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 town to consider the clarifications or changes in its threshold determination. (Ord. 216, Art. III (part), 1984).

IV. ENVIRONMENTAL IMPACT STATEMENT (EIS)

16.04.120 WAC 173-806-110 – Purpose of this part and adoption by reference.

This part contains the rules for preparing environmental impact statements. The town adopts the following sections by reference, as supplemented by this article:

WAC

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping (optional).

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

197-11-442 Contents of EIS on nonproject proposals.

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 216, Art. IV (part), 1984).

16.04.130 WAC 173-806-120 – Preparation of EIS – Additional considerations.

(A) Preparation of draft and final EISs (DEIS and FEIS) and draft and final supplemental EISs (SEIS) is the responsibility of (department) under the direction of the responsible official. Before the town issues an EIS, the responsible official shall be satisfied that it complies with this title and chapter 197-11 WAC.

(B) The DEIS and FEIS or draft and final SEIS shall be prepared by the town, the applicant, or by a consultant selected by the town or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the town will prepare the EIS, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the town’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

(C) The town may require an applicant to provide information that the town does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this title or that is being requested from another agency. (This does not apply to information the town may request under another ordinance or statute.) (Ord. 216, Art. IV (part), 1984).

16.04.140 WAC 173-806-125 – Additional elements to be covered in an EIS.

The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this title:

(A) Economy;

(B) Social policy analysis;

V. COMMENTING

16.04.150 WAC 173-806-128 – Adoption by reference.

This part contains rules for consulting, commenting, and responding on all environmental documents under SEPA, including rules for public notice and hearings. The town adopts the following sections by reference, as supplemented in this chapter:

WAC

197-11-500 Purpose of this part.

197-11-502 Inviting comment.

197-11-504 Availability and cost of environmental documents.

197-11-508 SEPA register.

197-11-535 Public hearings and meetings.

197-11-545 Effect of no comment.

197-11-550 Specificity of comments.

197-11-560 FEIS response to comments.

197-11-570 Consulted agency costs to assist lead agency.

(Ord. 216, Art. V (part), 1984).

16.04.160 WAC 173-806-130 – Public notice.

(A) Whenever the town issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the town shall give public notice; and

(B) Whenever the town 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 as follows:

(1) Posting the property, for site-specific proposals.

(2) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered.

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

(4) Posting in three places.

(C) Whenever possible, the town shall integrate the public notice required under this part with existing or future notice procedures for the town’s nonexempt permit(s) or approval(s) required for the proposal.

(D) The town may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 216, Art. V (part), 1984).

16.04.170 173-806-140 – Designation of official to perform consulted agency responsibilities for the town.

(A) The planning commission shall be responsible for preparation of written comments for the town in response to a consultation request prior to a threshold determination, participation in scoping, and reviewing a DEIS.

(B) The planning commission shall be responsible for the town’s compliance with WAC 197-11-550 whenever the town 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 town. (Ord. 216, Art. V (part), 1984).

VI. USING EXISTING ENVIRONMENTAL DOCUMENTS

16.04.180 WAC 173-806-150 – Purpose of this part and adoption by reference.

This part contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the town’s own environmental compliance. The town adopts the following sections by reference:

WAC

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

197-11-610 Use of NEPA documents.

197-11-620 Supplemental environmental impact statement – Procedures.

197-11-625 Addenda – Procedures.

197-11-630 Adoption – Procedures.

197-11-635 Incorporation by reference – Procedures.

197-11-640 Combining documents.

(Ord. 216, Art. VI (part), 1984).

VII. SEPA AND AGENCY DECISIONS

16.04.190 WAC 173-806-155 – Purpose of this part and adoption by reference.

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

WAC

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 216, Art. VII (part), 1984).

16.04.200 WAC 173-806-160 – Substantive authority.

(A) The policies and goals set forth in this title are supplementary to those in the existing authorization of the town.

(B) The town 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 title; 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 town 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.

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

(1) The town 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 a 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 town 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.

(3) The town adopts by reference the policies in the following: comprehensive plan, herbicide ordinances. (Ord. 216, Art. VII (part), 1984).

16.04.210 WAC 173-806-173 – Notice/statute of limitations.

(A) The town, 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 town clerk or county auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 216, Art. VII (part), 1984).

VIII. DEFINITIONS

16.04.220 WAC 173-806-175 – Purpose of this part and adoption by reference.

This part contains uniform usage and definitions of terms under SEPA. The town adopts the following sections by reference, as supplemented by WAC 173-806-040:

WAC

197-11-700 Definitions.

197-11-702 Act.

197-11-704 Action.

197-11-706 Addendum.

197-11-708 Adoption.

197-11-710 Affected tribe.

197-11-712 Affecting.

197-11-714 Agency.

197-11-716 Applicant.

197-11-718 Built environment.

197-11-720 Categorical exemption.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/city.

197-11-730 Decision maker.

197-11-732 Department.

197-11-734 Determination of nonsignificance (DNS).

197-11-736 Determination of significance (DS).

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-748 Environmentally sensitive area.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable alternative.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 216, Art. VIII, 1984).

IX. CATEGORICAL EXEMPTIONS

16.04.230 WAC 173-806-180 – Adoption by reference.

The town adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including WAC 173-806-070 (Flexible thresholds), WAC 173-806-080 (Use of exemptions), and WAC 173-806-190 (Environmentally sensitive areas):

WAC

197-11-800 Categorical exemptions

197-11-880 Emergencies

197-11-890 Petitioning DOE to change exemptions

(Ord. 216, Art. IX, 1984).

X. AGENCY COMPLIANCE

16.04.240 WAC 173-806-185 – Purpose of this part and adoption by reference.

This part 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 town adopts the following sections by reference, as supplemented by WAC 173-806-045 through 173-806-043 and this chapter:

WAC

197-11-900 Purpose of this part.

197-11-902 Agency SEPA policies.

197-11-916 Application to ongoing actions.

197-11-920 Agencies with environmental expertise.

197-11-922 Lead agency rules.

197-11-924 Determining the lead agency.

197-11-926 Lead agency for governmental proposals.

197-11-928 Lead agency for public and private proposals.

197-11-930 Lead agency for private projects with one agency with jurisdiction.

197-11-932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a town.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a town, and one or more state agencies.

197-11-936 Lead agency for a private project requiring licenses from more than one state agency.

197-11-938 Lead agencies for specific proposals.

197-11-940 Transfer of lead agency status to a state agency.

197-11-942 Agreements on lead agency status.

197-11-944 Agreements on division of lead agency duties.

197-11-946 DOE resolution of lead agency disputes.

197-11-948 Assumption of lead agency status.

(Ord. 216, Art. X (part), 1984).

16.04.250 WAC 173-806-190 – Environmentally sensitive areas.

(A) Index 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 town 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 town 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 town 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. 216, Art. X (part), 1984).

16.04.260 WAC 173-806-200 – Fees.

(A) Threshold Determinations. Charges for making threshold determinations when the town of Index is the lead agency are as follows:

(1) For SEPA application fees, reference IMC 14.04.140;

(2) For SEPA application review that includes a shoreline notice of action (required when a proposed project is within two hundred (200) feet of the river), reference IMC 14.04.140 for fee information;

(3) If the town completes the checklist at the applicant’s request or under WAC 173-806-090(3), an additional $80.00 will be collected.

The time period provided by this chapter for making a threshold determination shall not begin to run until payment of the fee.

(B) Environmental Impact Statement.

(1) When the town is the lead agency for a proposal requiring an EIS and the responsible official determines that an EIS shall be prepared by employees of the town, the town may charge and collect a reasonable fee from any applicant to cover costs incurred by the town in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

(2) The responsible official may determine that the town will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the town and may bill such costs and expenses directly to the applicant. The town may require the applicant to post bond or otherwise insure payment of such costs. Such consultants shall be selected by mutual agreement of the town and applicant after a call for proposals.

(3) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under (1) or (2) of this subsection which remain after incurred costs are paid.

(D) The town may charge any person for copies of any document prepared under this title, and for mailing the document, in a manner provided by Chapter 42.17 RCW. (Ord. 422 §§ A, B, 2011; Ord. 328, 1997; Ord. 326, 1997; Ord. 216, Art. X (part), 1984).

XI. FORMS

16.04.270 WAC 173-806-230 – Adoption by reference.

The town adopts the following forms and sections by reference:

WAC

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of nonsignificance (DNS).

197-11-980 Determination of significance and scoping notice (DS).

197-11-985 Notice of assumption of lead agency status.

197-11-990 Notice of action.

(Ord. 216, Art. XI, 1984).