Chapter 19.35


19.35.010    User guide.

19.35.020    Definitions and abbreviations.

19.35.030    Lead agency.

19.35.040    Responsible official.

19.35.050    General requirements.

19.35.060    Categorical exemptions.

19.35.070    Substantive authority.

19.35.080    Threshold determinations.

19.35.090    Environmental impact statements and other environmental documents.

19.35.100    Comments and public notice.

19.35.110    Use of existing environmental documents.

19.35.120    Use of environmental documents.

19.35.130    SEPA/GMA integration.

19.35.140    Planned actions.

19.35.150    Responsibility as consulted agency.

19.35.160    Appeals.

19.35.170    Fees.

19.35.180    Forms.

19.35.010 User guide.

This chapter contains the City’s laws that implement the State Environmental Policy Act (Chapter 43.21C RCW). This chapter contains several references to Chapter 197-11 WAC, which also implements the State Environmental Policy Act. Subsections of this chapter may reference sections of Chapter 197-11 WAC that are adopted by reference. These WAC sections, as well as Chapter 43.21C RCW, should be consulted for complete information regarding SEPA. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.020 Definitions and abbreviations.

A. The City adopts by reference the following sections of the WAC which contain information on the usage and definition of terms under SEPA:

197-11-040    Definitions;

197-11-220    SEPA/GMA definitions;

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;

197-11-721    Closed record appeal;

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;

197-11-750    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;

197-11-775    Open record hearing;

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.

B. The following abbreviations are used in this chapter:

1. SEPA – State Environmental Policy Act;

2. DNS – Determination of nonsignificance;

3. DOE – Washington State Department of Ecology;

4. DS – Determination of significance;

5. EIS – Environmental impact statement. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.030 Lead agency.

The procedures and standards regarding lead agency responsibility contained in the following sections of the WAC are adopted:

197-11-050    Lead agency;

197-11-900    Purpose of this part;

197-11-922    Lead agency rules;

197-11-924    Determining 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 county/city;

197-11-934    Lead agency for private projects requiring licenses from a local agency, not a county/city; and one or more state agencies;

197-11-936    Lead agency for private projects requiring licenses from more than one state agency;

197-11-938    Lead agencies for specific proposals;

197-11-940    Transfer 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. 11-0329 § 3 (Exh. 1).]

19.35.040 Responsible official.

For all proposals for which the City is the lead agency, the responsible official shall be the city manager. For these proposals, the responsible official shall make the threshold determination, supervise scoping and preparation of any required EIS, and perform any other functions assigned to the “lead agency” or “responsible official” by this chapter. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.050 General requirements.

The procedures and standards regarding the general requirements that apply to the SEPA process are adopted:

197-11-055    Timing of the SEPA process;

197-11-060    Content of environmental review;

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

197-11-080    Incomplete or unavailable information;

197-11-090    Supporting documents;

197-11-100    Information required of applicants;

197-11-158    GMA project review – Reliance on existing plans, laws and regulations;

197-11-238    Monitoring;

197-11-300    Purpose of this part;

197-11-650    Purpose of this part;

197-11-655    Implementation;

197-11-900    Purpose of this part;

197-11-902    Agency SEPA policies;

197-11-904    Agency SEPA procedures;

197-11-906    Content and consistency of agency procedures;

197-11-910    Designation of responsible official;

197-11-912    Procedures of consulted agencies;

197-11-916    Application to ongoing actions;

197-11-920    Agencies with environmental expertise.

A. The optional provision of WAC 197-11-060(3)(c) is adopted.

B. Under WAC 197-11-100, the applicant shall prepare the initial environmental checklist. The department shall make a reasonable effort to verify the information in the environmental checklist and shall have the authority to determine the final content of the environmental checklist.

C. The city manager may set reasonable deadlines for the submittal of information, studies, or documents necessary for, or subsequent to, threshold determinations. Failure to meet such deadlines shall cause the application to be deemed withdrawn, and plans or other data previously submitted for review may be returned to the applicant together with any unexpended portion of the application review fees. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.060 Categorical exemptions.

The City adopts by reference the following sections of the WAC which contain information on categorical exemptions:

197-11-305    Categorical exemptions;

197-11-800    Categorical exemptions;

197-11-880    Emergencies;

197-11-890    Petitioning DOE to change exemptions;

197-11-908    Critical areas.

A. The following exempt threshold levels are hereby established pursuant to WAC 197-11-800(1)(c) except as provided in WAC 197-11-305 and 197-11-800(1)(a):

1. The construction or location of any residential structures of 20 or fewer dwelling units;

2. The construction of a barn, loafing shed, farm equipment storage building, produce storage or packing structure, or similar agricultural structure, covering 30,000 square feet and to be used only by the property owner or his or her agent in the conduct of farming the property. This exemption shall not apply to feed lots;

3. The construction of an office, school, commercial, recreational, service or storage building with 12,000 square feet of gross floor area, and with associated parking facilities designed for 40 automobiles;

4. The construction of a parking lot designed for 40 automobiles;

5. Any fill or excavation of 500 cubic yards throughout the total lifetime of the fill or excavation and any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulation thereunder.

B. The following categorical exemptions do not apply in frequently flooded areas (flood hazard areas) pursuant to WAC 197-11-908:

1. WAC 197-11-800(1);

2. WAC 197-11-800(2)(a), (b), (c), (d), and (g);

3. WAC 197-11-800(2)(e), except that for residential structures, addition or modification of floor area above the ground floor that does not increase the ground floor area shall continue to be exempt; provided, that the cost of the addition or modification does not exceed 50 percent of the market value of the existing structure;

4. WAC 197-11-800(6)(a);

5. WAC 197-11-800(13)(c);

6. WAC 197-11-800(23)(a), (b), (c), (d), and (g), except that repair and maintenance that does not change the action from an exempt class shall continue to be exempt; and

7. WAC 197-11-800(24)(e) and (g).

C. The determination of whether a proposal is categorically exempt shall be made by the department. [Ord. 12-0337 § 1; Ord. 11-0329 § 3 (Exh. 1).]

19.35.070 Substantive authority.

The following section of the WAC regarding substantive authority and mitigation is adopted:

197-11-660    Substantive authority and mitigation.

A. For the purposes of RCW 43.21C.060 and WAC 197-11-660(a), the following policies, plans, rules and regulations, and all amendments thereto, are designated as potential bases for the exercise of the City’s substantive authority under SEPA, subject to the provisions of RCW 43.21C.240 and subsection B of this section:

1. The policies of the State Environmental Policy Act, RCW 43.21C.020;

2. The City of Kenmore comprehensive plan, its addenda, and revisions and neighborhood and subarea plans;

3. Surface water management plans;

4. The City of Kenmore grading regulations, Chapter 15.25 KMC;

5. The City of Kenmore land division regulations, KMC Title 17;

6. The City of Kenmore zoning code, KMC Title 18;

7. The City of Kenmore landmarks preservation code, Chapter 2.20 KMC;

8. The City of Kenmore noise regulations, Chapter 8.05 KMC;

9. The City of Kenmore shoreline management and flood hazard codes, KMC Title 16;

10. The City of Kenmore surface water runoff policy, Chapter 13.35 KMC;

11. The City of Kenmore water quality standards, Chapter 13.45 KMC;

12. The City of Kenmore street regulations, KMC Title 12.

B. Substantive SEPA authority to condition or deny new development proposals or other actions shall be used only in cases where specific adverse environmental impacts are not addressed by regulations as set forth above or unusual circumstances exist. In cases where the City has adopted regulations to systematically avoid or mitigate adverse impacts, those standards and regulations will normally constitute adequate mitigation of the impacts of new development. Unusual circumstances related to a site or to a proposal, as well as environmental impacts not mitigated by the regulations, will be subject to site-specific or project-specific SEPA mitigation.

C. Any decision to deny or approve with conditions pursuant to RCW 43.21C.060 shall be contained in a responsible official’s decision document. The written decision shall contain facts and conclusions based on the proposal’s specific adverse environmental impacts as identified in an environmental checklist, EIS, threshold determination, other environmental document including a department staff report and recommendation to a decisionmaker, or findings made pursuant to a public hearing authorized or required by law or ordinance. The decision document shall state the specific plan, policy or regulation which supports the SEPA decision and, if mitigation beyond existing development regulations is required, the specific adverse environmental impacts and the reasons why additional mitigation is needed to comply with SEPA.

D. This chapter shall not be construed as a limitation on the authority of the City to approve, deny or condition a proposal for reasons based upon other statutes, ordinances or regulations. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.080 Threshold determinations.

The City adopts by reference the following sections of the WAC which contain related information:

197-11-310    Threshold determination required;

197-11-315    Environmental checklist;

197-11-330    Threshold determination process;

197-11-335    Additional information;

197-11-340    Determination of nonsignificance (DNS);

197-11-350    Mitigated DNS;

197-11-360    Determination of significance (DS)/initiation of scoping;

197-11-390    Effect of threshold determination;

197-11-660    Substantive authority and mitigation.

The mitigated DNS provision of WAC 197-11-350 shall be enforced as follows:

A. If the department issues a mitigated DNS, conditions requiring compliance with the mitigation measures which were specified in the application and environmental checklist shall be deemed conditions of any decision or recommendation of approval of the action.

B. If at any time the proposed mitigation measures are withdrawn or substantially changed, the responsible official shall review the threshold determination and, if necessary, may withdraw the mitigated DNS and issue a DS. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.090 Environmental impact statements and other environmental documents.

The following sections of the WAC related to procedures and standards for preparation of environmental impact statements and other environmental documents are adopted:

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;

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.

A. Pursuant to WAC 197-11-408(2)(a), all comments on determinations of significance and scoping notices shall be in writing, except where a public meeting on EIS scoping occurs pursuant to WAC 197-11-410(1)(b).

B. Pursuant to WAC 197-11-420, 197-11-620, and 197-11-625, the department shall be responsible for preparation and content of EISs and other environmental documents. The department shall contract with consultants as necessary for the preparation of environmental documents. The department may consider the opinion of the applicant regarding the qualifications of the consultant but the department shall retain sole authority for selecting persons or firms to author, co-author, provide special services or otherwise participate in the preparation of required environmental documents.

C. Consultants or subconsultants selected by the City to prepare environmental documents for a private development proposal shall not: act as agents for the applicant in preparation or acquisition of associated underlying permits; have a financial interest in the proposal for which the environmental document is being prepared; perform any work or provide any services for the applicant in connection with or related to the proposal.

D. The department may establish and maintain one or more lists of qualified consultants who are eligible to receive contracts for preparation of environmental documents. Separate lists may be maintained to reflect specialized qualifications or expertise. When the department requires consultant services to prepare environmental documents, the department shall select a consultant and negotiate a contract for such services.

E. All costs of preparing the environment document shall be borne by the applicant.

F. In the event an applicant decides to suspend or abandon the project, the applicant must provide formal written notice to the department and consultant. The applicant shall continue to be responsible for all monies expended by the City or consultants to the point of receipt of notification to suspend or abandon, or other obligations or penalties under the terms of any contract let for preparation of the environmental documents.

G. The department shall only publish an environmental impact statement (EIS) when it believes that the EIS adequately discloses: the significant direct, indirect, and cumulative adverse impacts of the proposal and its alternatives; mitigation measures proposed and committed to by the applicant, and their effectiveness in significantly mitigating impacts; mitigation measures that could be implemented or required; and unavoidable significant adverse impacts. Unless otherwise agreed to by the applicant, a final environmental impact statement shall be issued by the department within 270 calendar days following the issuance of a DS for the proposal, except for public projects and nonproject actions, unless the department determines at the time of issuance of the DS that a longer time period will be required because of the extraordinary size of the proposal or the scope of the environmental impacts resulting therefrom; provided, that the additional time shall not exceed 90 calendar days unless agreed to by the applicant.

H. The following periods shall be excluded from the 270-day time period for issuing a final environmental impact statement:

1. Any time period during which the applicant has failed to pay required environmental review fees to the department;

2. Any period of time during which the applicant has been requested to provide additional information required for preparation of the environmental impact statement; and

3. Any period of time during which the applicant has not authorized the department to proceed with preparation of the environmental impact statement. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.100 Comments and public notice.

This section contains rules for commenting on and responding to environmental documents, including rules for public notices and hearings. The City adopts by reference the following related sections of the WAC:

197-11-355    Optional DNS process;

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;

197-11-510    Public notice;

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    Consultant agency costs to assist lead agency.

A. A public comment period for a proposed DNS is required pursuant to WAC 197-11-502 when the proposed action involves: (i) another agency with jurisdiction; (ii) demolition of any structure or facility not exempted by WAC 197-11-800(2)(f) or 197-11-880; (iii) issuance of clearing or grading permits not exempted in Part Nine of the SEPA rules; (iv) a DNS under WAC 197-11-350(2), (3) or 197-11-360(4); or (v) a GMA action. For these projects, the optional DNS process may be used to combine the SEPA comment period with the 21-day notice of application comment period, if any, for the underlying permit. If a notice of application is not required for the underlying permit, the 14-day SEPA comment period shall follow issuance of the DNS and shall be concluded prior to the decision on the underlying action.

B. Publication of notice in a newspaper of general circulation in the area where the proposal is located also shall be required for all nonproject actions and for all other proposals that are subject to the provisions of this chapter but are not classified as land use decisions in this title.

C. The responsible official may require further notice if deemed necessary to provide adequate public notice of a pending action. Failure to require further or alternative notice shall not be a violation of any notice procedure. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.110 Use of existing environmental documents.

The following procedures and standards of the WAC are adopted regarding use of existing environmental documents:

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. 11-0329 § 3 (Exh. 1).]

19.35.120 Use of environmental documents.

For nonexempt proposals, the DNS or final EIS and SEIS for the proposal shall accompany the City’s staff recommendation to the appropriate decisionmaker. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.130 SEPA/GMA integration.

The following procedures and standards of the WAC regarding the timing and content of environmental review are hereby adopted:

197-11-210    SEPA/GMA integration;

197-11-228    Overall SEPA/GMA integration procedures;

197-11-230    Timing of an integrated SEPA/GMA process;

197-11-232    SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping;

197-11-235    Documents.

[Ord. 11-0329 § 3 (Exh. 1).]

19.35.140 Planned actions.

The following procedures and standards of the WAC are adopted regarding the designation of planned actions:

197-11-164    Planned actions – Definition and criteria;

197-11-168    Ordinances or resolutions designating planned actions – Procedures for adoption;

197-11-172    Planned actions – Project review.

[Ord. 11-0329 § 3 (Exh. 1).]

19.35.150 Responsibility as consulted agency.

All requests from other agencies that the City consult on threshold investigations, the scope process, EISs or other environmental documents shall be submitted to the department. The department shall be responsible for compiling and transmitting the City’s response to such requests for consultation. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.160 Appeals.

The following procedures and standards of the WAC regarding appeals are hereby adopted:

197-11-680    Appeals.

A. Appeals of threshold determinations or the adequacy of a final EIS are conducted by the hearing examiner pursuant to the provisions of KMC 19.30.070, subject to the following:

1. Only one appeal of each threshold determination shall be allowed on a proposal.

2. As provided in RCW 43.21C.075(3)(d), the decision of the responsible official shall be entitled to substantial weight.

3. For Type 2 decisions, an administrative SEPA appeal hearing shall be consolidated in all cases with an administrative appeal hearing, if any, on the underlying proposal. For Type 3 and 4 decisions, an administrative SEPA appeal hearing shall be consolidated with the open record hearing on the underlying action.

B. An appeal of a threshold determination shall be filed with the City within 14 calendar days of the date the determination is issued by the responsible official, unless a public comment period under WAC 197-11-340(2) is provided or the optional DNS process is used in which case the appeal period is 21 calendar days.

C. Notwithstanding the provisions of subsections A and B of this section, the department may adopt procedures under which an administrative appeal shall not be provided if the city manager finds that consideration of an appeal would be likely to cause the department to violate a compliance, enforcement or other specific mandatory order or specific legal obligation. The city manager’s determination shall be included in the notice of the SEPA determination, and the city manager shall provide a written summary upon which the determination is based within five days of receiving a written request. Because there would be no administrative appeal in such situations, review may be sought before a court of competent jurisdiction under RCW 43.21C.075 and applicable regulations, in connection with an appeal of the underlying governmental action.

D. There is no administrative appeal of a DNS, MDNS, DS or EIS adequacy associated with a Type 1 decision or a Type 5 or other legislative decision. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.170 Fees.

The City shall require fees as set forth in KMC Title 20. [Ord. 11-0329 § 3 (Exh. 1).]

19.35.180 Forms.

The City adopts by reference the following sections of the WAC which contain information on forms:

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. 11-0329 § 3 (Exh. 1).]