Chapter 19.04 ENVIRONMENTAL POLICY

A. The town adopts the ordinance codified in this chapter under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904.

B. This chapter contains the town's SEPA procedures and policies. (Ord. 149-B (part), 1984)

ARTICLE II. GENERAL REQUIREMENTS

19.04.020 Purpose and adoption by reference.

This article contains the basic requirements that apply to the SEPA process. The town adopts the following sections of Chapter 197-11 of the Washington Administrative Code by reference:


WAC	197-11-	040	Definitions.
		050	Lead agency.
		055	Timing of the SEPA process.
		060	Content of environmental review.
		070	Limitations on actions during SEPA process.
		080	Incomplete or unavailable information.
		090	Supporting documents.
		100	Information required of applicants.

(Ord. 149-B (part), 1984)

19.04.030 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:

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

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

C. “Ordinance” means the ordinance, resolution or other procedure used by the town to adopt regulatory requirements.

D. “SEPA rules” means WAC Chapter 197-11 adopted by the Department of Ecology. (Ord. 149-B (part), 1984)

19.04.040 Designation of responsible official.

A. For those proposals for which the town is the lead agency the responsible official shall be the council.

B. For all proposals for which the town 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.

C. The town shall retain all documents required by the SEPA rules (WAC Chapter 197-11) and make then available in accordance with RCW Chapter 42.17. (Ord. 149-B (part), 1984)

19.04.050 Lead agency determination and responsibilities.

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

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

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

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

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

F. Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal (that is: which agencies require nonexempt licenses?). (Ord. 149-B (part), 1984)

19.04.060 Transfer of lead agency status to a state agency.

For any proposal for a private project where the town would be the lead agency and for which one or more state agencies have jurisdiction, the town's responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the town shall be an agency with jurisdiction. To transfer lead agency duties, the town's responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the town shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal. (Ord. 149-B (part), 1984)

19.04.070 Additional considerations in time limits applicable to the SEPA process.

The following time limits, expressed in calendar days, shall apply when the town processes licenses for all private projects and those governmental proposals submitted to the town by other agencies: thirty days. (Ord. 149-B (part), 1984)

19.04.080 Additional timing considerations.

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

B. If the town's only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the town conduct environmental review prior to submission of the detailed plans and specifications. (Ord. 149-B (part), 1984)

ARTICLE III. CATEGORICAL EXEMPTIONS AND THRESHOLD DETERMINATIONS

19.04.090 Purpose and adoption by reference.

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


WAC	197-11-	300	Purpose of this part.
		305	Categorical exemptions.
		310	Threshold determination required.
		315	Environmental checklist.
		330	Threshold determination process.
		335	Additional information.
		340	Determination of nonsignificance (DNS).
		350	Mitigated DNS.
		360	Determination of significance (DS)/initiation of scoping.
		390	Effect of threshold determination.

(Ord. 149-B (part), 1984)

19.04.100 Use of exemptions.

A. Each department within the town 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 town 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 government 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 town may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:

1. The town shall not give authorization for:

a. Any nonexempt action,

b. Any action that would have an adverse environmental impact, or

c. Any action that would limit the choice of alternatives;

2. 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

3. A department may withhold approval of exempt action 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. 149-B (part), 1984)

19.04.110 Environmental checklist.

A completed environmental checklist (or copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this chapter; except, a checklist is not needed if the town and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The town shall use the environmental checklist to determine the lead agency and, if the town is the lead agency, for determining the responsible official and for making a threshold determination. (Ord. 149-B (part), 1984)

19.04.120 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 town's actual threshold determination for the proposal.

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

1. Be written;

2. State whether the town currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the town to consider a DS; and

3. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

D. As much as possible, the town should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

E. When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the town shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen calendar days of receiving the changed or clarified proposal:

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

2. If the town indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the town shall make the threshold determination, issuing a DNS or DS as appropriate.

3. The applicant's proposed mitigation measures (clarification, changes, or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent stormwater runoff” are inadequate, whereas proposals to “muffle machinery to X decibel” or “construct 200-foot stormwater retention pond at Y location” are adequate.

4. Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

F. A mitigated DNS is issued under WAC 197-11-340(2) requiring a fifteen-day comment period and public notice for nonpublic projects.

G. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the town.

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

I. The town's written response under subsection B of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the town to consider the clarifications or changes in its threshold determination. (Ord. 149-B (part), 1984)

ARTICLE IV. ENVIRONMENTAL IMPACT STATEMENT (EIS)

19.04.130 Purpose and adoption by reference.

This article contains the rules for preparing environmental impact statements. The town adopts the following sections by reference:


WAC	197-11-	400	Purpose of EIS.
		402	General requirements.
		405	EIS types.
		406	EIS timing.
		408	Scoping.
		410	Expanded scoping.
		420	EIS preparation.
		425	Style and size.
		430	Format.
		435	Cover letter or memo.
		440	EIS contents.
		442	Contents of EIS on nonproject proposals.
		443	EIS contents when prior nonproject EIS.
		444	Elements of the environment.
		448	Relationship of EIS to other considerations.
		450	Cost-benefit analysis.
		455	Issuance of DEIS.
		460	Issuance of FEIS.

(Ord. 149-B (part), 1984)

19.04.140 Preparation of EIS additional considerations.

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

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

C. The town may require an applicant to provide information the town 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 town may request under another ordinance or statute.) (Ord. 149-B (part), 1984)

ARTICLE V. COMMENTING

19.04.150 Adoption by reference.

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


WAC	197-11-	500	Purpose of this part.
		502	Inviting comment.
		504	Availability and cost of environmental documents.
		508	SEPA register.
		535	Public hearings and meetings.
		545	Effect of no comment.
		550	Specificity of comments.
		560	FEIS response to comments.
		570	Consulted agency costs to assist lead agency.

(Ord. 149-B (part), 1984)

19.04.160 Public notice.

A. Whenever the responsible official of the town issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), public notice shall be given 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 town shall give notice of the DNS or DS by publishing notice in a newspaper of general circulation in the county, town, or general area where the proposal is located.

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

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

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

2. Publishing notice in a newspaper of general circulation in the county, town or general area where the proposal is located.

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

D. The town may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense. (Ord. 149-B (part), 1984)

19.04.170 Designation of official to perform consulted agency responsibilities.

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

B. This council shall be responsible for the town's compliance with WAC 197-11-550 whenever the town is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the town. (Ord. 149-B (part), 1984)

ARTICLE VI. USING EXISTING ENVIRONMENTAL DOCUMENTS

19.04.180 Purpose and adoption by reference.

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


WAC	197-11-	600	When to use existing environmental documents.
		610	Use of NEPA documents.
		620	Supplemental environmental impact statement --Procedures.
		625	Addenda--Procedures.
		630	Adoption--Procedures.
		635	Incorporation by reference--Procedures.
		640	Combining documents.

(Ord. 149-B (part), 1984)

ARTICLE VII. SEPA AND AGENCY DECISIONS

19.04.190 Purpose and adoption by reference.

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


WAC	197-11-	650	Purpose of this part.
		655	Implementation.
		660	Substantive authority and mitigation.
		680	Appeals.

(Ord. 149-B (part), 1984)

19.04.200 Substantive authority.

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

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

1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this 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 town has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

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

C. The town 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 town designates and adopts by reference the following policies as the basis for the town's exercise of authority pursuant to this section:

1. The town shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs and resources to the end that the state and its citizen 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; and

g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

2. The town recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

E. The town elects to eliminate appeals under RCW 43.21C.060. (Ord. 149-B (part), 1984)

19.04.210 Appeals.

Any appeal shall be to the Superior Court of Lincoln County within thirty days of a decision. (Ord. 149-B (part), 1984)

ARTICLE VIII. DEFINITIONS

19.04.220 Purpose and adoption by reference.

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


WAC	197-11-	700	Definitions.
		702	Act.
		704	Action.
		706	Addendum.
		708	Adoption.
		710	Affected tribe.
		712	Affecting.
		714	Agency.
		716	Applicant.
		718	Built environment.
		720	Categorical exemption.
		722	Consolidated appeal.
		724	Consulted agency.
		726	Cost-benefit analysis.
		728	County/town.
		730	Decision maker.
		732	Department.
		734	Determination or nonsignificance (DNS).
		736	Determination or significance (DS).
		738	EIS.
		740	Environment.
		742	Environmental checklist.
		744	Environmental document.
		746	Environmental review.
		748	Environmentally sensitive area.
		750	Expanded scoping.
		752	Impacts.
		754	Incorporation by reference.
		756	Lands covered by water.
		758	Lead agency.
		760	License.
		762	Local agency.
		764	Major action.
		766	Mitigated DNS.
		768	Mitigation.
		770	Natural environment.
		772	NEPA.
		774	Nonproject.
		776	Phased review.
		778	Preparation.
		780	Private project.
		782	Probable.
		784	Proposal.
		786	Reasonable alternative.
		788	Responsible official.
		790	SEPA.
		792	Scope.
		793	Scoping.
		794	Significant.
		796	State agency.
		797	Threshold determination.
		799	Underlying governmental action.

(Ord. 149-B (part), 1984)

ARTICLE IX. CATEGORICAL EXEMPTIONS

19.04.230 Adoption by reference.

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


WAC	197-11-	800	Categorical exemptions.
		880	Emergencies.
		890	Petitioning DOE to change exemptions.

(Ord. 149-B (part), 1984)

ARTICLE X. AGENCY COMPLIANCE

19.04.240 Purpose and adoption by reference.

This article contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, designating environmentally sensitive areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. The town adopts the following sections by reference, as supplemented by WAC 173-806-050 through 173-806-053 and this article:


WAC	197-11-	900	Purpose of this part.
		902	Agency SEPA policies.
		916	Application to ongoing actions.
		920	Agencies with environmental expertise.
		922	Lead agency rules.
		924	Determining the lead agency.
		926	Lead agency for governmental purposes.
		928	Lead agency for public and private proposals.
		930	Lead agency for private projects with one agency with jurisdiction.
		932	Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a town.
		934	Lead agency for private projects requiring licenses from a local agency, not a town, and one or more state agencies.
		936	Lead agency for private projects requiring licenses from more than one state agency.
		938	Lead agency for specific proposals.
		940	Transfer of lead agency status to a state agency.
		942	Agreements on lead agency status.
		944	Agreements on division of lead agency disputes.
		946	DOE resolution of lead agency disputes.
		948	Assumption of lead agency status.

(Ord. 149-B (part), 1984)

19.04.250 Fees.

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

A. Threshold Determination. For every environmental checklist the town will review when it is lead agency, the town shall collect a fee of twenty-five dollars from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this chapter shall not begin to run until payment of the fee.

B. Environmental Impact Statement.

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

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

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

C. The town 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 town may charge any person for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by RCW Chapter 42.17. (Ord. 149-B (part), 1984)

ARTICLE XI. FORMS

19.04.260 Adoption by reference.

The town adopts the following forms and sections by reference:


WAC	197-11-	960	Environmental checklist.
		965	Adoption notice.
		970	Determination of nonsignificance (DNS).
		980	Determination of significance and scoping notice (DS).
		985	Notice of assumption of lead agency status.
		990	Notice of action.

(Ord. 149-B (part), 1984)