Chapter 18.04 ENVIRONMENTAL POLICY

The city does adopt, by reference, the policies of the State Environmental Policy Act (SEPA) as expressed in RCW 43.21C.010, 43.21C.020, 43.21C.031 and 43.21C.095. (Ord. 1405 § 3, 1999).

18.04.020 Policy.

A. Repealed by Ord. 1627.

B. Agencies shall to the fullest extent possible:

1. Interpret and administer the policies, regulations and laws of the state in accordance with the policies set forth in SEPA and these rules;

2. Find ways to make the SEPA process more useful to decisionmakers and the public, promote certainty regarding the requirements of the act, reduce paperwork and the accumulation of extraneous background data and emphasize important environmental impacts and alternatives;

3. Prepare environmental documents that are concise, clear and to the point, and are supported by evidence that the necessary environmental analyses have been made;

4. Initiate the SEPA process early in conjunction with other agency operations to avoid delay and duplication;

5. Integrate the requirement of SEPA with existing agency planning and licensing procedures and practices, so that such procedures run concurrently rather than consecutively;

6. Encourage public involvement in decisions that significantly affect environmental quality;

7. Identify, evaluate and require or implement, where required by the act and these rules, reasonable alternatives that would mitigate adverse effects of proposed actions on the environment. (Ord. 1627 § 2, 2004; Ord. 1405 § 3, 1999).

I. Authority

18.04.030 Authority.

The city adopts this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120 and the SEPA rules, WAC 197-11-904, and this chapter contains the city’s procedures and policies under SEPA. Hereafter the SEPA rules, Chapter 197-11 WAC, shall be used in conjunction with this chapter. (Ord. 1405 § 3, 1999).

II. General Requirements

18.04.040 Purpose of this part and adoption by reference.

This part contains the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 WAC by reference:

WAC

197-11-040 Definitions.

197-11-050 Lead agency.

197-11-055 Timing of the SEPA process.

197-11-060 Content of environmental review.

197-11-070 Limitations on actions during SEPA process.

197-11-080 Incomplete or unavailable information.

197-11-090 Supporting documents.

197-11-100 Information required of applicants.

(Ord. 1405 § 3, 1999).

18.04.060 Designation of responsible officials.

For those proposals for which the city is the lead agency, the responsible official shall be the planning and community development director or his/her designee.

A. For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the “lead agency” or “responsible official” by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

B. The city 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. 1663 § 30, 2006; Ord. 1484 § 7, 2001; Ord. 1405 § 3, 1999).

18.04.070 Lead agency determination and responsibilities.

A. The department within the city receiving an application for or initiating a proposal that involves a nonexempt action shall determine the lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940, unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency.

B. When the city is the lead agency for a proposal, the department receiving the application shall forward to the responsible official who shall supervise compliance with the threshold determination requirements and, if an EIS is necessary, shall supervise preparation of the EIS.

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

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

E. The city is authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the responsible official that will incur responsibilities as the result of such agreement approve the agreement.

F. When the city makes a lead agency determination for a private project it 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. 1405 § 3, 1999).

18.04.080 Transfer of lead agency status to a state agency.

For any proposal for a private project where the city would be the lead agency and for which one or more state agencies have jurisdiction, the responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city shall be an agency with jurisdiction. To transfer lead agency duties, the responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 1405 § 3, 1999).

18.04.090 Additional timing considerations.

A. For nonexempt proposals, the DNS or draft EIS for the proposal shall accompany the staff recommendation to any appropriate advisory body, such as the planning commission.

B. If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 1405 § 3, 1999).

III. Categorical Exemptions and Threshold Determinations

18.04.100 Purpose of this part and adoption by reference.

This part of this chapter 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 city adopts the following sections by reference:

WAC

197-11-300 Purpose of this part.

197-11-305 Categorical exemptions.

197-11-310 Threshold determination.

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.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

(Ord. 1837 § 4, 2014; Ord. 1405 § 3, 1999).

18.04.110 Use of exemptions.

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

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

C. If a proposal includes both exempt and nonexempt actions, the city/county may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that as authorized in WAC 197-11-070:

1. A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt action(s) were not approved; and

2. A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved. (Ord. 1405 § 3, 1999).

18.04.120 Environmental checklist.

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

B. For private proposals, the city/county will require the applicant to complete the environmental checklist, providing assistance, as necessary. For city/county proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.

C. The city/county may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

1. The city/county 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. 1405 § 3, 1999).

18.04.130 Mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a 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 city/county’s actual threshold determination for the proposal.

C. The responsible official should respond to the request for early notice within 20 calendar days. The response shall:

1. Be written;

2. State whether the city/county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the city/county 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 city/county 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 or amended environmental checklist, the city/county shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:

1. If the city/county indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city/county shall issue and circulate a DNS under WAC 197-11-340(2);

2. If the city/county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city/county 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 storm water runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot storm water 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. Mitigated DNSs issued under WAC 197-11-340 require a 15-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 city/county.

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

I. The city’s written response under subsection B of this section shall not be construed as determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city/county to consider the clarifications or changes in its threshold determination. (Ord. 1405 § 3, 1999).

IV. Environmental Impact Statement (EIS)

18.04.140 Purpose of this part and adoption by reference.

This part of the chapter contains the rules for preparing environmental impact statements. The city adopts the following sections by reference:

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.

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. 1405 § 3, 1999).

V. Commenting

18.04.150 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 city hereby adopts the following sections by reference, as supplemented in this part:

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. 1405 § 3, 1999).

18.04.160 Public notice.

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

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

2. If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by:

a. Posting the property, or requiring the applicant post the property, for site-specific proposals;

b. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

c. Notifying the news media.

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

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

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

2. Posting the property, or requiring the applicant post the property, for site-specific proposals;

3. Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

4. Notifying the news media.

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

D. The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 1405 § 3, 1999).

18.04.170 Designation of official to perform consulted agency responsibilities for the city.

A. The city clerk shall be responsible for preparation of written comments for the city in response to a consultation request prior to a threshold determination, participation in scoping and reviewing a DEIS.

B. The city clerk shall be responsible for the city’s compliance with WAC 197-11-550 whenever the city is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the city. (Ord. 1405 § 3, 1999).

VI. Using Existing Environmental Documents

18.04.180 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 city’s own environmental compliance. The city 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. 1405 § 3, 1999).

VII. SEPA and Agency Decisions

18.04.190 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 part also contains procedures for appealing SEPA determinations to agencies or the courts. The city 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. 1405 § 3, 1999).

18.04.200 Substantive authority.

A. The policies and goals set forth in this chapter are supplementary to those in existing authorization of the city.

B. The city may attach conditions to a permit or approval for a proposal so long as:

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

2. Such conditions are in writing; and

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

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

5. Such conditions are based on one or more policies in subsection D of this section and cited in the license or other decision document.

C. The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

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

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

3. The denial is based on one or more policies identified in subsection D of this section and identified in writing in the decision document.

D. The city designates and adopts by reference as hereafter may be modified by the city the following policies as the basis for the city’s exercise of authority pursuant to this section:

1. The comprehensive plan of the city.

2. Storm water comprehensive plan of the city.

3. City of Milton water system plan.

4. City of Milton transportation improvement plan.

5. City of Milton comprehensive storm water plan.

6. City of Milton electric system plan.

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

a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

b. Assure for all people of the state 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 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.

8. The city recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. (Ord. 1653 § 1, 2005; Ord. 1627 § 1, 2004; Ord. 1405 § 3, 1999).

18.04.210 Notice/statute of limitations.

A. The city, the applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080 for any action.

B. The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 1405 § 3, 1999).

VIII. Definitions

18.04.220 Purpose of this part and adoption by reference.

Repealed by Ord. 1671. (Ord. 1663 § 31, 2006; Ord. 1484 § 8, 2001; Ord. 1405 § 3, 1999).

IX. Categorical Exemptions

18.04.230 Adoption by reference.

The city adopts by reference the following rules for categorical exemptions:

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 1405 § 3, 1999).

X. Agency Compliance

18.04.240 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, listing agencies with environmental expertise, selecting the lead agency and applying these rules to current agency activities. The city adopts the following sections by reference:

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 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 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. 1405 § 3, 1999).

18.04.250 Fees.

The agency shall require the following fees for its activities in accordance with the provisions of this chapter:

A. Threshold Determination. For every environmental checklist the city will review when it is a lead agency, the city shall collect a fee as per Chapter 3.48 MMC from the proponent of the proposal prior to undertaking the threshold determination. 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 city is the lead agency for a proposal requiring an EIS and the land use administrator determines that an EIS shall be prepared by the employees of the city, the city may charge and collect a reasonable fee from any applicant to cover cost incurred by the city in preparing the EIS. The city clerk shall advise the applicant of the projected costs for the EIS prior to actual preparation; the applicant shall post bond, or deposit $1,000 cash, or otherwise ensure payment of such costs.

2. The manager of the district may determine that the city 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 city and may bill such costs and expenses directly to the applicant. The city may require the applicant to post bond, deposit $1,000 cash or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the city and the applicant after a call for proposals.

3. If a proposal is modified so that an EIS is no longer required, the city clerk shall refund any fees collected under subsection (B)(1) or (B)(2) of this section together with any interest accrued which remain after incurred costs are paid.

C. The city may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

D. The city shall not collect a fee for performing its duties as a consulted agency.

E. The city may charge any person for copies of any document prepared under this chapter and for mailing the document, in a manner provided by Chapter 42.17 RCW and Resolution No. 337.

F. Environmental checklist review pursuant to MMC 3.48.010 shall include review by the public works director or consulting engineer who shall submit a written report to the responsible official incorporating, if relevant, documentation of any off-site improvements to mitigate said impacts. The responsible official shall determine the reasonable cost to the city of the environmental checklist review and shall require the applicant to pay a fee in addition to the original deposit to cover the cost of such review. If the cost of review is substantially less than the environmental checklist review fee deposit the responsible official shall document the difference and refund said difference to the applicant, minus transaction costs incurred by the city in said refund process.

G. Voluntary Pre-Project Application Environmental Review. The potential applicant for any project action listed at MMC 3.48.010 may obtain an environmental review similar to the review set forth at subsection F of this section, upon payment of a fee deposit as set forth as relevant, MMC 3.48.010. The fee deposit shall be subject to the terms set forth at subsection F of this section. The potential applicant shall be provided a copy of the written report prepared by the public works director or consulting engineer. Upon timely submission of a substantially similar project application and environmental checklist, the responsible official may reduce the fee deposit required pursuant to subsection F of this section when a second duplicative city engineering review is determined to be unnecessary. In such a case the engineering review under this subsection shall be used to complete the requirement of subsection F of this section. (Ord. 1405 § 3, 1999).

XI. Forms

18.04.260 Adoption by reference.

The city 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 (DS) and scoping notice.

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

197-11-990 Notice of action.

(Ord. 1405 § 3, 1999).

Prior legislation: Ords. 971 and 1195.