Chapter 22E.030
STATE ENVIRONMENTAL POLICY ACT (SEPA)

Sections:

22E.030.010    Purpose.

22E.030.020    Scope.

22E.030.030    Policy.

22E.030.040    Definitions.

22E.030.050    Forms.

22E.030.060    Lead agency.

22E.030.070    Responsible official.

22E.030.080    Purpose and general requirements.

22E.030.090    Categorical exemptions, threshold determinations, and enforcement of mitigating measures.

22E.030.100    Planned actions.

22E.030.110    Environmental impact statements and other environmental documents.

22E.030.120    Comments and public notice.

22E.030.130    Use of existing environmental documents.

22E.030.140    Substantive authority.

22E.030.150    SEPA/GMA integration.

22E.030.160    Ongoing actions.

22E.030.170    Responsibility as consulted agency.

22E.030.180    Appeals.

22E.030.010 Purpose.

The purposes of these procedures are:

(1) To encourage productive and enjoyable harmony between people and their environment;

(2) To promote efforts that will prevent or eliminate damage to the environment and biosphere;

(3) To stimulate the health and welfare of people;

(4) To enrich the understanding of ecological systems and natural resources that are important to the city of Marysville, the state of Washington, and the nation;

(5) To establish procedures to implement the provisions of Chapter 43.21C RCW, the State Environmental Policy Act, and Chapter 197-11 WAC, SEPA Rules;

(6) To provide environmental information to city decision-makers;

(7) To create a process that is efficient and effective;

(8) To promote certainty with respect to the requirements of SEPA and to integrate SEPA procedures with decision-making. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.020 Scope.

The city of Marysville hereby establishes these procedures to implement the State Environmental Policy Act, herein referred to as “SEPA,” Chapter 43.21C RCW, consistent with those rules under Chapter 197-11 WAC. The procedures are promulgated under WAC 197-11-020(1), which states: “Each agency must have its own SEPA procedures consistent with” Chapter 197-11 WAC and Chapter 43.21C RCW. Consistent with WAC 197-11-020(3), these provisions, Chapter 197-11 WAC, and Chapter 43.21C RCW must be read together as a whole to comply with the spirit and letter of the law. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.030 Policy.

The city of Marysville adopts WAC 197-11-030, as now existing or hereinafter amended, by reference, subject to the following:

(1) Under WAC 197-11-030(1) and (2), the terms “agency” and “agencies” shall include the city of Marysville and its respective departments.

(2) Under WAC 197-11-030(2)(a), the text is revised to:

Interpret and administer the policies, regulations, and laws of the State of Washington and applicable ordinances and resolutions of the City of Marysville in accordance with the policies set forth in RCW 43.21C and WAC 197-11.

(Ord. 2852 § 10 (Exh. A), 2011).

22E.030.040 Definitions.

Terms defined under Chapter 22A.020 MMC shall apply to this chapter, subject to the following:

(1) Terms Undefined by Chapter 22A.020 MMC. Where Chapter 22A.020 MMC does not define terms, the city of Marysville adopts those definitions under WAC 197-11-040, 197-11-220, and 197-11-700 through 197-11-799, as existing and as hereafter amended.

(2) Resolving Conflicts Between Chapter 22A.020 MMC and SEPA Definitions. Where a conflict exists between those terms under Chapter 22A.020 MMC and WAC 197-11-040 and 197-11-700 through 197-11-799, the more specific definition that meets the minimum standards and spirit of Chapter 197-11 WAC shall apply. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.050 Forms.

The city of Marysville adopts the following forms and sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

WAC

197-11-960    Environment 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. 2852 § 10 (Exh. A), 2011).

22E.030.060 Lead agency.

The city of Marysville adopts the following sections of Chapter 197-11 WAC, as now existing or hereinafter amended, by reference:

(1) WAC 197-11-050;

(2) WAC 197-11-922 through 197-11-948. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.070 Responsible official.

For those proposals for which the city is a lead agency, the responsible official shall be the city of Marysville community development director. For all proposals for which the city is a lead agency, the community development director 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 those sections of the SEPA rules that have been adopted by reference. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.080 Purpose and general requirements.

The city of Marysville adopts WAC 197-11-055 through 197-11-100, as now existing or hereinafter amended, by reference, subject to the following:

(1) Analyzing Similar Actions in a Single Document. The city adopts the optional provision of WAC 197-11-060(3)(c).

(2) Time Guidelines. Under WAC 197-11-055(2)(b), the responsible official will make a threshold determination within 90 days of determining that a completed application has been submitted, consistent with WAC 197-11-055(2)(d), subject to:

(a) The calculation of the number of days in subsection (2)(b) of this section shall not include those days between the mailing of any request for additional information and resubmittal.

(b) The responsible official shall not make a threshold determination when there is not adequate information to make a threshold determination within 90 days. When there is not adequate information to make a determination at the end of 90 days, the responsible official shall notify the applicant in writing regarding the information required to make a threshold determination.

(3) Content of SEPA Checklist – Responsibility. The applicant shall prepare the initial environmental checklist, unless the responsible official specifically elects to prepare the checklist. The responsible official shall make a reasonable effort to verify the information in the checklist and supporting documentation and shall have the authority to determine the final content of the checklist.

(4) Additional Information for SEPA Checklist – Timelines. The responsible official may set reasonable deadlines for the submittal of information, studies, or documents that are necessary for, or subsequent to, threshold determinations. Unless an extension is requested in writing and approved, failure to meet such deadlines shall cause the application to be deemed withdrawn. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.090 Categorical exemptions, threshold determinations, and enforcement of mitigating measures.

The city of Marysville adopts WAC 197-11-300 through 197-11-390, 197-11-800 through 197-11-890, and 197-11-908 as now existing or hereinafter amended, by reference, subject to the following:

(1) Establishment of Flexible Thresholds for Categorically Exempt Actions. The following exempt threshold levels are hereby established pursuant to WAC 197-11-800(1)(d):

(a) The construction or location of any single-family residential structures of less than or equal to 30 dwelling units;

(b) The construction or location of any multifamily residential structures of less than or equal to 60 dwelling units;

(c) The construction of a barn, loafing shed, farm equipment storage building, produce storage or packing structure, or similar agricultural structure, covering less than or equal to 40,000 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;

(d) The construction of an office, school, commercial recreational, service or storage building with less than or equal to 30,000 square feet of gross floor area, and with associated parking facilities and/or independent parking facilities designed for less than or equal to 90 automobiles;

(e) Any landfill or excavation of less than or equal to 1,000 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 regulations thereunder.

(2) The exemptions in this subsection apply except when the project:

(a) Is undertaken wholly or partly on lands covered by water and this remains true whether lands covered by water are mapped;

(b) Requires a license governing discharges to water that is not exempt under RCW 43.21C.0383;

(c) Requires a license governing emissions to air that is not exempt under RCW 43.21C.0381 or WAC 197-11-800(7) or (8); or

(d) Requires a land use decision that is not exempt under WAC 197-11-800(6).

(e) A series of exempt actions that are physically or functionally related to each other, and that together may have a probable significant adverse environmental impact in the judgment of the director/agency with jurisdiction may be subject to SEPA.

(3) Categorical Exemptions without Flexible Thresholds. The following proposed actions that do not have flexible thresholds are categorically exempt from threshold determination and EIS requirements, subject to the rules and limitations on categorical exemptions contained in WAC 197-11-305:

(a) Actions listed in WAC 197-11-800(2) through (26).

(4) Environmentally Critical Areas. The Marysville shoreline environments map and the critical areas maps adopted pursuant to this title designate the location of environmentally sensitive areas within the city and are adopted by reference. For each environmentally sensitive area, the exemptions within WAC 197-11-800 that are inapplicable for the area are (1), (2)(d), (2)(e), (6)(a) and (24)(a) through (g). Unidentified exemptions shall continue to apply within environmentally sensitive areas of the city.

(a) Lands Covered by Water. 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.

(b) Treatment. The city shall treat proposals located wholly or partially within an environmentally critical 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 critical area.

(5) Responsibility for Determination of Categorical Exempt Status. The determination of whether a proposal is categorically exempt shall be made by the responsible official.

(6) Mitigation Measures. Modifications to a SEPA checklist or other environmental documentation that result in substantive mitigating measures shall follow one of the following processes:

(a) The responsible official may notify the applicant of the requested modifications to the proposal and identify the concerns regarding unmitigated impacts. The applicant may elect to revise or modify the environmental checklist, application, or supporting documentation. The modifications may include different mitigation measures than those requested by the responsible official; however, acceptance of the proposed measures is subject to subsequent review and approval by the responsible official.

(b) The responsible official may make a mitigated determination of nonsignificance (MDNS), identifying mitigating measures. The MDNS may be appealed by the applicant pursuant to MMC 22E.030.180.

(c) The responsible official may identify mitigating measures in a letter and mail that letter to the applicant. In writing, the applicant may acknowledge acceptance of these measures as mitigating conditions. The acknowledgement shall be incorporated into the application packet as supporting environmental documentation or as an addendum to the environmental checklist.

(7) Enforcing Mitigation Measures. Pursuant to WAC 197-11-350(7), the city hereby adopts the following procedures for the enforcement of mitigation measures:

(a) Incorporation of Representations Made by Applicant into MDNS or DNS and Approval. Representations made in the environmental checklist and supporting documentation shall be considered as the foundation of any decision or recommendation of approval of the action. As such, the responsible official relies on this documentation in making a decision on a proposal. Unless specifically revised by the responsible official or applicant, those statements, representations, and mitigating measures contained in the environmental checklist, application, and supporting documentation shall be considered material conditions of any approval. Mitigating measures shall only be included on a DNS under the following circumstances:

(i) When the UDC does not provide adequate regulations to mitigate for an identified impact, and when any one of the following circumstances or combination of circumstances exists:

(A) When such conditions are not specifically written in the environmental checklist, application, or supporting information; or

(B) When the responsible official determines that the proposed conditions or representations contained within that information do not adequately address impacts from a proposal.

(b) Modifications to a Proposal – Responsible Official May Withdraw Threshold Determination. If, at any time, the proposal or proposed mitigation measures are substantially changed, or if proposed mitigation measures are withdrawn, then the responsible official shall review the threshold determination and, if necessary, may withdraw the threshold determination and issue a revised determination, including a determination of significance (DS), as deemed appropriate.

(c) Enforcement of Mitigation Measures. Mitigation measures that are identified in an environmental checklist, development application, supporting documentation, an EIS or an MDNS shall be considered material conditions of the permit or approval that is issued by the reviewing department. As such, failure to comply with these measures may be enforceable through the enforcement provisions that regulate the proposal. (Ord. 2987 § 1, 2015; Ord. 2939 § 1, 2013; Ord. 2852 § 10 (Exh. A), 2011).

22E.030.100 Planned actions.

The city of Marysville adopts WAC 197-11-164 through 197-11-172, as now existing or hereinafter amended, by reference. Planned actions shall be adopted by ordinance or resolution following the process established under MMC Title 22G. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.110 Environmental impact statements and other environmental documents.

The city of Marysville adopts WAC 197-11-400 through 197-11-460 and 197-11-600 through 197-11-640, as now existing or hereinafter amended, by reference, subject to the following:

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

(2) Pursuant to WAC 197-11-420, 197-11-620, and 197-11-625, the responsible official shall be responsible for preparation and content of an EIS and other environmental documents. The responsible official shall contract with consultants, as necessary, for the preparation of environmental documents and EISs. The responsible official may consider the opinion of the applicant regarding the qualifications of the consultant, but the responsible official 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.

(3) Consultants or subconsultants contracted by the city to prepare environmental documents for a private development proposal:

(a) Shall not act as agents for the applicant in preparation or acquisition of associated underlying permits or actions;

(b) Shall not have a financial interest in the proposal for which the environmental documents are being prepared; and

(c) Shall not perform any work nor provide any services for the applicant in connection with or related to the proposal. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.120 Comments and public notice.

The city of Marysville adopts WAC 197-11-500 through 197-11-570, as now existing or hereinafter amended, by reference, subject to the following:

(1) Official comments shall be submitted in writing to the contact person on the threshold determination. E-mail comments that are e-mailed to the contact person on the threshold determination may be accepted as official comments.

(2) If required, public notice shall comply with the requirements for the underlying permit as specified in Chapter 22G.010 MMC, Article II, Public Notice Requirements.

(3) 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. 2852 § 10 (Exh. A), 2011).

22E.030.130 Use of existing environmental documents.

The city of Marysville adopts WAC 197-11-600 through 197-11-640, as now existing or hereinafter amended, by reference. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.140 Substantive authority.

(1) The city of Marysville adopts WAC 197-11-650 through 197-11-660, 197-11-900 through 197-11-906, and 197-11-158, as now existing or hereinafter amended, by reference.

(2) For the purposes of RCW 43.21C.060 and WAC 197-11-660(a), the following policies, plans, rules, 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:

(a) Chapter 43.21C RCW, State Environmental Policy Act;

(b) Marysville comprehensive plan;

(c) Six-year transportation improvement program;

(d) Chapter 6.76 MMC, Noise Regulations;

(e) MMC Title 7, Health and Sanitation;

(f) MMC Title 9, Fire;

(g) MMC Title 11, Traffic;

(h) MMC Title 12, Streets and Sidewalks;

(i) MMC Title 14, Water and Sewers;

(j) MMC Title 16, Building;

(k) MMC Title 22, Unified Development Code;

(l) All transportation improvement programs adopted by the city council pursuant to Chapter 39.92 RCW;

(m) All capital facilities projects contained within the Marysville comprehensive plan;

(n) Interlocal agreement between Snohomish County and the city of Marysville on reciprocal mitigation of transportation impacts;

(o) Interlocal agreement between the city of Marysville and Snohomish County concerning annexation and urban development within the Marysville urban growth area;

(p) The formally designated SEPA policies of other affected agencies or jurisdictions when there is an agreement with the affected agency or jurisdiction which specifically addresses impact identification, documentation, and mitigation and which references the environmental policies formally designated by the agency or jurisdiction for the exercise of SEPA authority. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.150 SEPA/GMA integration.

The city of Marysville adopts WAC 197-11-210 through 197-11-235, as now existing or hereinafter amended, by reference. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.160 Ongoing actions.

Pursuant to WAC 197-11-916, unless otherwise provided for herein, the provisions of Chapter 197-11 WAC shall apply to all elements of SEPA compliance, including modifying and supplementing an EIS initiated after the effective date of the ordinance codified in this title. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.170 Responsibility as consulted agency.

Pursuant to WAC 197-11-912, all requests from other agencies that the city of Marysville consult on threshold investigations, the scope process, EISs or other environmental documents shall be submitted to the community development director. The community development director shall be responsible for coordination with affected city departments and for compiling and transmitting the city of Marysville’s response to such requests for consultation. (Ord. 2852 § 10 (Exh. A), 2011).

22E.030.180 Appeals.

The city of Marysville adopts WAC 197-11-680, with the following clarifications:

(1) Any agency or aggrieved person may appeal the procedures or substance of an environmental determination of the responsible official under SEPA as follows:

(a) Only one administrative appeal of a threshold determination or of the adequacy of an EIS is allowed; successive administrative appeals on these issues within the same agency are not allowed. This limitation does not apply to administrative appeals before another agency.

(b) A DNS. Written notice of such an appeal shall be filed with the responsible official within 15 days after the date of issuance of the DNS. The appeal hearing shall be consolidated with the hearing(s) on the merits of the governmental action for which the environmental determination was made.

(c) A DS. Written notice of the appeal shall be filed with the responsible official within 15 days after the date of issuance of the DS. The appeal shall be heard by the city council within 30 days thereafter.

(d) The Adequacy of an EIS. Written notice of appeal shall be filed with the responsible official within 15 days after the issuance of the final EIS. The appeal hearing shall be consolidated with the hearing(s) on the merits of the governmental action for which the EIS was issued.

(e) Appeals of intermediate steps under SEPA (e.g., lead agency determination, scoping, draft EIS adequacy) shall not be allowed.

(f) For any 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.

(g) Determination by the responsible official shall carry substantial weight in any appeal proceeding.

(2) Notice. Whenever there is a final action by the city council for which compliance with SEPA is required and for which a statute or ordinance establishes a time limit for commencing judicial appeal, the city shall give official notice as required by WAC 197-11-680(5).

(3) No agency or person may seek judicial review of environmental determinations made pursuant to SEPA unless such agency or person has first appealed such environmental determinations using the administrative procedure set forth in this section. (Ord. 2852 § 10 (Exh. A), 2011).