Chapter 20.04 STATE ENVIRONMENTAL POLICY ACT

(1) The city of Oak Harbor adopts by reference the policies of the State Environmental Policy Act as expressed in RCW 43.21C.010 and 43.21C.020 both as now in effect or as hereafter amended or otherwise modified.

(2) The city possesses the authority to deny or condition actions so as to mitigate or prevent adverse environmental impacts. This authority applies to all city activities including actions as defined in this chapter as well as activities which are categorically exempt or excluded from the definition of action whether or not such activities are considered to be ministerial in nature. (Ord. 1141 § 2, 1998).

20.04.020 General requirements – WAC.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules adopted by the State of Washington Department of Ecology):

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.

197-11-210 SEPA/GMA integration.

197-11-220 SEPA/GMA definitions.

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

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

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

197-11-235 Documents.

197-11-250 SEPA/Model Toxics Control Act integration.

197-11-253 SEPA lead agency for MTCA actions.

197-11-256 Preliminary evaluation.

197-11-259 Determination of nonsignificance for MTCA remedial actions.

197-11-262 Determination of significance and EIS for MTCA remedial actions.

197-11-265 Early scoping for MTCA remedial actions.

197-11-268 MTCA interim actions.

(Ord. 1141 § 3, 1998).

20.04.030 Definitions – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State of Washington Department of Ecology):

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.

197-11-721 Closed record appeal.

197-11-722 Consolidated appeal.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 City.

197-11-730 Decisionmaker.

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.

197-11-776 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. 1141 § 4, 1998).

20.04.040 Additional definitions.

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:

(1) “Department” means any division, subdivision or organizational unit of the city of Oak Harbor established by ordinance, rule or order.

(2) “Early notice” means the city of Oak Harbor’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal. (Mitigated DNS procedures.)

(3) “Ordinance” means the ordinance, resolution or the procedure used by the City of Oak Harbor to adopt regulatory requirements.

(4) “SEPA Rules” means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 1141 § 5, 1998).

20.04.050 SEPA responsible official.

(1) For those proposals for which the city is the lead agency the responsible official shall be the director of development services. An alternate designation may be a permanent or temporary transfer of the duties and may include one or more cases.

(2) 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 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.

(3) 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.

(4) Public information concerning SEPA documents may be obtained from the Development Services Department, City Hall, 865 S.E. Barrington Drive, Oak Harbor, Washington 98277, phone (360) 279-4510. (Ord. 1752 § 1, 2015; Ord. 1141 § 6, 1998).

20.04.060 Lead agency determination and responsibilities.

(1) 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 as now in effect or as hereafter amended or otherwise modified 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.

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

(3) When the city is not the lead agency for a proposal, all departments of the city shall use and consider as appropriate either the MDNS, DNS or the final EIS of the lead agency in making decisions on the proposal. No city 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.

(4) 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 the department shall notify the responsible official. The city 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 must petition to the Department of Ecology for the 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.

(5) Departments of the city are authorized to make agreements as to lead agency status or share 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.

(6) 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.

(7) When the city is lead agency for a Model Toxics Control Act (MTCA) remedial action, the Department of Ecology shall be provided an opportunity under WAC 197-11-253(5) to review the environmental documents prior to public notice being provided. If the SEPA and MTCA documents are issued together with one public comment period under WAC 197-11-253(6), the city shall decide jointly with Ecology who receives the comment letters and how copies of the comment letters will be distributed to the other agency. (Ord. 1141 § 7, 1998).

20.04.070 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 the state agency. The state agency, the 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. 1141 § 8, 1998).

20.04.080 City action – Timing considerations.

For nonexempt proposals, the declaration of nonsignificance or the draft EIS for the proposal shall accompany the city staff recommendation to any appropriate advisory body such as the planning commission. (Ord. 1141 § 9, 1998).

20.04.090 Categorical exemptions and threshold determinations – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology) as now in effect or as hereafter amended or otherwise modified:

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.

197-11-355 Optional DNS process.

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

197-11-390 Effect of threshold determination.

(Ord. 1141 § 10, 1998).

20.04.100 Thresholds for categorical exemptions.

(1) The following exempt levels for minor new construction under WAC 197-11-800(1)(d) shall apply to meet the local conditions, if the exceptions established in WAC 197-11-800(1)(a)(i) through (iv) are met:

(a) For residential dwelling units in WAC 197-11-800(1)(d), up to and including 20 dwelling units;

(b) For multifamily dwelling units in WAC 197-11-800(l)(d), up to and including 20 dwelling units;

(d) For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(d), up to 12,000 square feet and up to 40 associated parking spaces;

(e) For parking lots in WAC 197-11-800(1)(d), up to 40 parking spaces not associated with a structure;

(f) For landfills and excavations in WAC 197-11-800(1)(d), up to 500 cubic yards throughout the total lifetime of the fill or excavation, and any fill, excavation, or grading necessary for an exempt project in subsections (1)(a) through (e) of this section shall be exempt.

(2) The process to revise any categorical exemption established in subsection (1) of this section shall be in conformance with WAC 197-1l-800(1)(c). (Ord. 1970 § 1, 2023; Ord. 1382 § 1, 2004; Ord. 1141 § 11, 1998).

20.04.110 Use of exemptions.

(1) Each department within the city that receives an application for a license or, in a 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.

(2) 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.

(3) If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

(a) The city shall not give authorization for:

(i) Any nonexempt action,

(ii) Any action that would have an adverse environmental impact, or

(iii) Any action that would limit the choice of alternatives;

(b) 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 or actions were not approved; and

(c) 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 or actions were not approved. (Ord. 1141 § 12, 1998).

20.04.120 Environmental checklist procedure.

(1) Except as provided in subsection (3) below, a completed environmental checklist in the form provided in WAC 197-11-960 shall be filed at the same time as an application for permit, license, certificate or other approval not specifically exempted in this chapter, except a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for making the threshold determination.

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

(3) For projects submitted as planned actions under WAC 197-11-164, the city shall use its exist-

ing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. The modified environmental checklist form may be prepared and adopted along with or as part of a planned action ordinance, or developed after the ordinance is adopted. In either case, a proposed modified environmental checklist form must be sent to the Department of Ecology to allow at least a 30-day review prior to use. (Ord. 1141 § 13, 1998).

20.04.130 DNS/mitigated DNS.

(1) 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.

(2) An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

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

(b) Precede the city’s actual threshold determination for the proposal.

(3) The responsible official should respond to the request for early notice within 10 working days. The response shall:

(a) Be written;

(b) State whether the city considers issuance of a DS likely and, if so, indicate the general or specific area or areas of concern that are leading the city to consider a DS; and

(c) 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.

(4) As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

(5) When an applicant submits a changed or clarified proposal along with a revised environmental checklist, the city 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:

(a) If the city 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 shall issue and circulate a determination of nonsignificance under WAC 197-11-340(2);

(b) If the city indicated the areas of concern but did not indicate specific mitigating measures that would allow it to issue a DNS, the city shall make the threshold determination issuing a DNS or DS as appropriate;

(c) The applicant’s proposed mitigation measures must be in writing and must be specific. For example, proposal to “control noise” or “prevent storm water runoff” are inadequate whereas proposals to “muffle machinery to X number of decibels” or “construct a 200-foot storm water retention pond at Y location” are adequate;

(d) 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.

(6) A mitigated DNS is issued under WAC 197-11-340(2) requiring a 14-day comment period and public notice.

(7) 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.

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

(9) The city’s written response under subsection (2) 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 city to consider the clarifications or changes in its threshold determination.

(10) Anyone violating or failing to comply with any mitigation measure imposed under this section shall, upon conviction thereof, be subject to a Class 1 infraction as defined in Chapter 1.28 OHMC. Each day of violation shall be a separate offense. Anyone who shall continue to violate or fail to comply with such measure after receiving notice of the violation shall be guilty of a gross misdemeanor punishable by a fine of up to $5,000 or 364 days in jail or both such fine and jail time. In addition, any permits authorizing work which are subject to the mitigation measures imposed under this section may be suspended or revoked pending restoration or settlement of claims resulting from the violation of the mitigation measures.

(a) Responsibility. The person primarily responsible for SEPA compliance shall be the person obtaining the permit. A person other than the permittee may be held liable under the penalty provision of this chapter if he/she has notice of the SEPA conditions.

(b) Notice and Correction. It is directed that when feasible, a notice to correct shall be used in lieu of filing citations or complaints. It is recognized that a correction notice process may not be feasible (appropriate or workable) where an action cannot be corrected such as the protection of unique or special natural vegetation, species habitat, air and noise pollution standards and restrictions on time or duration of construction or other work or where the violation is willful.

The correction notice process shall have the following elements:

(i) The city attorney shall give written notice describing the violation and directing the person cease violation or to correct and giving a reasonable time limit to correct.

(ii) Notice may be served in person, by certified mail or by posting the notice at a visible location on or near the property; provided, that when posting the property, the permittee shall be personally served or sent a letter by certified mail.

(iii) The city and permittee may enter into an agreement to meet the SEPA conditions within the time specified by notice or agreement.

(iv) If the permittee cannot achieve compliance with the SEPA condition, the city attorney or his or her designee may file a citation or complaint for each day of violation under this section.

(i) “Permittee” includes the property owner or other person who obtains the development permit.

(ii) “Person” includes natural persons, corporations and other legal entities having independent power to act with regard to property or persons.

(d) The civil and criminal liability under this subsection is supplemental to other remedial authority under SEPA and the ordinances and codes of the city of Oak Harbor. (Ord. 1717 § 41, 2015; Ord. 1271 § 1, 2001; Ord. 1141 § 14, 1998).

20.04.140 Environmental impact statement (EIS) – WAC provisions adopted.

The city of Oak Harbor adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules adopted by the State of Washington Department of Ecology):

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.

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 nonprojects 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. 1141 § 15, 1998).

20.04.145 Integrated SEPA process and GMA.

The city adopts by reference the following sections of Chapter 197-11 WAC as now in effect or hereafter adopted or amended:

WAC

197-11-210 SEPA/GMA integration.

197-11-220 SEPA/GMA definitions.

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

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

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

197-11-235 Documents.

197-11-250 SEPA/Model Toxics Control Act (MTCA) integration.

197-11-253 SEPA lead agency for MTCA actions.

197-11-256 Preliminary evaluation.

197-11-259 Determination of nonsignificance for MTCA remedial action.

197-11-262 Determination of significance and EIS for MTCA remedial actions.

197-11-265 Early scoping for MTCA remedial actions.

197-11-268 MTCA interim actions.

(Ord. 1141 § 16, 1998).

20.04.150 Preparation of EIS – Additional considerations.

(1) Preparation of draft and final EISs and SEISs is the responsibility of the city staff under the direction of the responsible official. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

(2) The draft and final EIS or SEIS shall be prepared by the city staff, the applicant, or a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city 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 city’s procedure for EIS preparation, including approval of the draft and final EIS prior to distribution.

(3) The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. This does not apply to information the city may request under another ordinance or statute. (Ord. 1141 § 17, 1998).

20.04.160 Commenting – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology):

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.

197-11-510 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 Consulted agency costs to assist lead agency.

(Ord. 1141 § 18, 1998).

20.04.170 Public notice requirements.

(1) 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 approval(s) required for the proposal.

(2) Whenever possible, when 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:

(a) If an environmental document is issued concurrently with the notice of application, the public notice requirements for the notice of application in RCW 36.70B.110(4) will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1).

(b) If no public notice is otherwise required for the permit or approval, the city shall give notice of the DNS or DS by (Note: Select at least one of the following):

(i) Posting the property, for site-specific proposals;

(ii) Publishing notice in a newspaper of general circulation in the city, or general area where the proposal is located;

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

(iv) Notifying the news media;

(v) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(vi) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (either general lists or lists for specific proposals for subject areas).

(c) 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.

(3) If a DNS is issued using the optional DNS process, the public notice requirements for a notice of application in RCW 36.70B.110(4) as supplemented by the requirements in WAC 197-11-355 will suffice to meet the SEPA public notice requirements in WAC 197-11-510(b).

(4) 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 indicating the availability of the DEIS in any public notice required for a nonexempt license, and at least one of the following:

(a) Posting the property, for site-specific proposals;

(b) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

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

(d) Notifying the news media;

(e) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(f) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (general mailing list kept by the city).

(5) Public notice for projects that qualify as planned actions shall be tied to the underlying permit as specified in WAC 197-11-172(3).

(6) The city may require an applicant to complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 1141 § 19, 1998).

20.04.180 Responsible official to perform consulted agency responsibilities.

(1) The responsible official 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 draft EIS.

(2) The responsible official 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. 1141 § 20, 1998).

20.04.190 Existing environmental documents – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology):

WAC

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.

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. 1141 § 21, 1998).

20.04.200 SEPA and agency decisions – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology):

WAC

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 1141 § 22, 1998).

20.04.210 Substantive authority.

(1) The policies and goals set forth in this chapter are supplementary to those in the existing authorization of the city of Oak Harbor.

(2) The city may attach conditions to a permit or approval for a proposal so long as:

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

(b) Such conditions are in writing; and

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

(e) Such conditions are based on one or more policies in OHMC 20.04.212 and cited in the license or other decision document.

(3) The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

(a) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a final EIS or final supplemental EIS prepared pursuant to this chapter; and

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

(c) The denial is based on one or more policies identified in OHMC 20.04.212 and identified in writing in the decision document. (Ord. 1382 § 2, 2004; Ord. 1141 § 23, 1998).

20.04.212 Substantive policies.

The city designates and adopts the following policies as the basis for the city’s exercise of authority to this section:

(1) The city shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs and resources so that the state, the city 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 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;

(g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources; and

(h) The city recognizes that each person has a fundamental and inalienable right to a healthful environment as well as a responsibility to contribute to the preservation and enhancement of the environment.

(2) The city adopts by reference the policies, in the following laws, codes, ordinances, resolutions, agreements and plans as now existing or hereinafter amended, as a possible basis for the exercise of substantive authority in the conditioning or denying of proposals:

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

(b) Chapters 36.70A through 36.70C RCW, State Growth Management Act;

(d) OHMC Title 12, Storm Water;

(e) OHMC Title 13, Water;

(f) OHMC Title 14, Sewers;

(g) OHMC Title 15, Garbage and Refuse;

(h) OHMC Title 16, Mobile Homes;

(i) OHMC Title 17, Buildings;

(j) OHMC Title 18, Planning;

(k) OHMC Title 19, Zoning;

(l) OHMC Title 20, Environment;

(m) OHMC Title 21, Subdivisions;

(n) Chapter 3.63 OHMC, Impact Fees;

(o) Chapter 3.64 OHMC, Fee Schedule;

(p) City of Oak Harbor Comprehensive Plan;

(q) City of Oak Harbor Comprehensive Water Plan;

(r) City of Oak Harbor Comprehensive Sewer Plan;

(s) City of Oak Harbor Comprehensive Storm Water Plan;

(t) City of Oak Harbor Comprehensive Plan Transportation Element;

(u) City of Oak Harbor Capital Facilities Plan;

(v) City of Oak Harbor Comprehensive Plan Woodlands Area Map;

(w) City of Oak Harbor Commercial and Industrial Design Guidelines;

(x) City of Oak Harbor General Rules and Regulations for the Prevention and Control of Fires and Fire Hazards;

(y) Landscape Policy Manual;

(z) Oak Harbor Comprehensive Parks and Recreation Plan, Freund Marsh Master Plan, City Beach Park Master Plan, and other adopted park and recreation plans;

(aa) Drainage, storm water, transportation, development guidelines and other engineering plans or documents governing development within the city;

(bb) Transportation Improvement Program (TIP);

(cc) All intergovernmental and/or interlocal agreements between the city of Oak Harbor and surrounding jurisdictions, including federal, state and local agencies, special purpose districts, or other municipal, governmental or public entities, including without limitation all such agreements concerning transportation, education, parks and recreation, fire services, or other infrastructure elements, including, but not limited to, the interlocal agreement between Island County and the city of Oak Harbor pertaining to joint land use policies for unincorporated areas of urban growth area, countywide planning policies, coordinated water system plan;

(dd) Washington State Department of Ecology Criteria for Sewage Works Design “Orange book” (Chapter 14.03 OHMC);

(ee) Washington State Department of Ecology Stormwater Management Manual for the Puget Sound Basin (OHMC 12.30.010), 1992 version for capacity and design standards and current version for water quality and best practice standards;

(ff) Washington State Department of Health Water system design manual (Chapter 246-290 WAC);

(gg) Washington State DOT/APWA standard Specifications for road and bridge construction (OHMC 21.40.020);

(hh) Washington State DOT/APWA Standard Plans (OHMC 21.40.020);

(ii) Washington State Department of Transportation Local Agency Guidelines Manual;

(jj) American Association of State and Highway Transportation Officials (AASHTO), A Policy on Geometric Design of Highways and Streets Fourth Edition 2001 (sometimes referred to as the “Green Book”);

(kk) Institute of Transportation Engineers Trip Generation Manual (OHMC 11.32.020(6));

(ll) Standard Methods for the Examination of Water and Waste Water, 19th Edition, 1992; Section 5520 (OHMC 14.09);

(mm) Section 405 of the Clean Water Act; the Solid Waste Disposal Act (SWDA), including Title 11 commonly referred to as the Resource Conservation and Recovery Act (RCRA); any state regulations contained in any state sludge management plan prepared pursuant to Subtitle D of the SWDA; the Clean Air Act; the Toxic Substances Control Act; and the Marine Protection, Research, and Sanctuaries Act;

(nn) Section 307(c) of the Clean Water Act;

(oo) Manual on Uniform Traffic Control Devices, Millennium Edition;

(pp) 1997 Uniform Sign Code published by the International Conference of Building Officials;

(qq) 1997 Uniform Code for the Abatement of Dangerous Buildings published by the International Conference of Building Officials;

(rr) 1997 Uniform Housing Code published by the International Conference of Building Officials;

(3) Effective July 1, 2004, the city adopts by reference the additional policies, in the following codes, as now existing or hereinafter amended, as a possible basis for the exercise of substantive authority in the conditioning or denying of proposals:

(a) The 2003 Edition of the International Building Code, including Sections 101 through 106 of Appendix E, Appendix I and Appendix J, published by the International Code Council as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapter 51-50 WAC;

(b) The 2003 Edition of the International Residential Code, excepting Chapters 11 and 25 through 42, and including Appendices H and J, as published by the International Code Council as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapter 51-51 WAC;

(c) The 2003 Edition of the International Mechanical Code, published by the International Code Conference as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapter 51-52 WAC;

(d) The 2003 Edition of the Uniform Plumbing Code, Plumbing Code Standards and appendices published by the International Association of Plumbing and Mechanical Officials as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapters 51-56 and 51-57 WAC;

(e) The 2003 Edition of the International Fire Code, Fire Code Standards and appendices, published by the International Code Council as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapters 51-54 and 51-55 WAC;

(f) 2003 Washington State Energy Code, as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapter 51-11 WAC;

(g) 2003 Washington State Ventilation and Indoor Air Quality Code, as amended by the Washington State Building Code Council on November 21, 2003, and published as Chapter 51-13 WAC. (Ord. 1382 § 3, 2004).

20.04.215 Appeals.

(1) Any interested person may appeal a threshold determination, adequacy of a final EIS and the conditions or denials of a requested action made by a non-elected city official pursuant to the procedures set forth in this section. No other SEPA appeal shall be allowed.

(2) All appeals filed pursuant to this section must be filed in writing with the director within 14 calendar days of the date of the decision appealed from.

(3) On receipt of a timely written notice of appeal, the director shall advise the hearing examiner of the pendency of the appeal and request that a date for considering the appeal be established. The decision of the hearing examiner shall be final and shall not be appealable to the city council.

(4) Appeals shall be governed by the procedures specified in Chapters 18.20 and 18.40 OHMC.

(5) All relevant evidence shall be received during the hearing of the appeal. The procedural deter-

mination by the city’s responsible official shall carry substantial weight in any appeal proceeding.

(6) For any appeal under this section, the city shall provide for a record that shall consist of the following:

(a) Findings and conclusions;

(b) Testimony under oath; and

(7) The city shall give official notice whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal. (Ord. 1589 § 1, 2010; Ord. 1141 § 24, 1998).

20.04.220 Categorical exemptions – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology):

WAC

197-11-800 Categorical exemptions.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 1141 § 25, 1998).

20.04.227 Critical areas.

(1) The city determines that all categorical exemptions will not apply in the critical areas identified in the critical areas provisions of Chapter 20.24 OHMC and the city’s comprehensive plan.

(2) The scope of environmental review of actions within these areas which would otherwise be categorically exempt shall be limited to:

(a) Documenting whether the proposal is consistent with the requirements of the critical areas ordinance; and

(b) Evaluating potentially significant impacts on the critical area resources not adequately addressed by GMA planning documents and development regulations, if any, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and with other applicable environmental review laws.

(3) All categorical exemptions not listed in subsection (1) apply whether or not the proposal will be located in a critical area. (Ord. 1141 § 26, 1998).

20.04.230 Agency compliance – WAC provisions adopted.

The city adopts by reference the following sections or subsections of Chapter 197-11 WAC (State Environmental Policy Act Rules as adopted by the State Department of Ecology):

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 city.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a 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 agency 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. 1141 § 27, 1998).

20.04.240 Fees.

The city shall require the following fees for its activities in accordance with the provisions of this chapter as set out in the city’s fee ordinance in Chapter 3.64 OHMC as now in effect or hereafter amended.

(1) Environmental Impact Statement. The responsible official 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. Such consultants shall be selected by mutual agreement of the city and applicant after a call for proposals. The city may require the applicant to post bond or otherwise ensure payment of such costs.

(2) 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. (Ord. 1141 § 28, 1998).

20.04.250 Adoption by reference.

Sections of the Washington Administrative Code (WAC) adopted by reference shall be as now in effect or as hereby amended or otherwise modified.

A copy of the Washington Administrative Code adopted by reference is on file with the city clerk’s office. It is further directed that the city clerk shall keep a copy of the referenced Washington Administrative Code sections and shall make a copy of the sections of the Washington Administrative Code adopted by reference available for public inspection. (Ord. 1141 § 29, 1998).

Prior legislation: Ords. 689, 916 and 989.