Chapter 16.04 ENVIRONMENTAL POLICY

This chapter is adopted pursuant to RCW 43.21C.120, the State Environmental Policy Act (SEPA), Chapter 43.21C RCW, WAC 197-11-904, and the SEPA rules set forth in Chapter 197-11 WAC, all as currently existing and as may be hereafter amended. Chapter 197-11 WAC shall be used in conjunction with this chapter as may be appropriate. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE TWO--GENERAL REQUIREMENTS

16.04.020 Purpose.

This Article Two sets forth the basic requirements that apply to the Environmental Review (SEPA) process. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.030 Adoption by reference.

The following sections of the Washington Administrative Code Chapter 197-11 are adopted by reference:

197-11-040 Definitions.

197-11-050 Lead agency.

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.

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

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.

197-11-238 Monitoring.

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 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. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.040 Additional definitions.

In addition to those definitions contained within WAC 197-11-700 through 197-11-799 and WAC 197-11-220, when used in this chapter, the following terms shall have the following meanings, unless the context indicates otherwise:

A. "Chapter" means this Chapter 16.04 of the Woodway Municipal Code (WMC), together with such other ordinance, resolution, or procedure used by the Town to adopt, implement or enforce regulatory provisions applicable or related to the environmental review of development proposals in the Town.

B. "Department" means any division, subdivision or organizational unit of the Town established by ordinance, rule, or order.

C. "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.

D. "SEPA rules" means WAC Chapter 197-11, as promulgated from time to time by the Department of Ecology. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.050 Designation of responsible official.

A. For those proposals for which the Town is the lead agency, the responsible official shall be the Town Planner, unless otherwise designated by the Mayor.

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 WMC16.04.020. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.060 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, 197-11-253, 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 Town is the lead agency for a proposal, the department receiving the application shall determine 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 Town is not the lead agency for a proposal, all departments of the Town shall use and consider, as appropriate, either the DNS, MDNS 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, MDNS or EIS in addition to that prepared by a lead agency, unless required under WAC 197-11-600. The Town may conduct supplemental environmental review under WAC 197-11-600.

D. If the Town or any department receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-253 or WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection shall be made to the agency originally making the determination and resolved within fifteen days of receipt of notice of the determination, or the Town shall file, if appropriate, a petition with the Department of Ecology for a lead agency determination under WAC 197-11-946 within the fifteen-day time period. Any petition on behalf of the Town may be initiated by the Town responsible official.

E. Departments are authorized to make agreements as to lead agency status or shared lead agency duties pursuant to 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 shall approve the agreement only after consultation with and written approval from the mayor.

F. Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify all other agencies having jurisdiction over the proposal.

G. When the Town is lead agency for a Model Toxics Control Act (MTCA) remedial action pursuant to RCW Ch. 70.105D and WAC Ch. 173-340, 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 Town shall decide jointly with the Department of Ecology who receives the comment letters and how copies of the comment letters will be distributed to the other agency. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.070 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 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 responsible official shall 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 applicant and any other agencies with jurisdiction over the proposal. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.080 Additional timing considerations.

For nonexempt proposals, the DNS, MDNS or final EIS for the proposal shall accompany the Town’s staff recommendation to the Town Planning Commission or other advisory body designated by the Town Council. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE THREE--CATEGORICAL EXEMPTIONS AND THRESHOLD DETERMINATIONS

16.04.100 Purpose.

This Article Three sets forth the rules for deciding whether a proposal has a "probable significant, adverse environmental impact" requiring an environmental impact statement (EIS) to be prepared, and also contains rules for evaluating the impacts of proposals not requiring an EIS. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.110 Adoption by reference.

The following sections of Chapter 197-11 WAC are adopted by reference:

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. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.120 Flexible thresholds for categorical exemptions.

A. New Construction. The following new construction activities are adopted as exempt levels under WAC 197-11-800 (1)(b) based on local conditions, except when undertaken wholly or partly on lands covered by water or containing one or more environmentally critical areas (Chapter 16.10):

1. For residential dwelling units in WAC 197-11-800 (1)(b)(i): Up to two dwelling units.

2. For agricultural structures in WAC 197-11-800 (1)(b)(ii): Up to ten thousand square feet.

3. For landfills and excavations, up to five hundred cubic yards throughout the total lifetime of the project and for any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulations thereunder.

B. Land Use Decisions. The following land use decisions shall be exempt:

1. Except upon lands covered by water or containing one or more environmentally critical areas (Chapter 16.10), the approval of short plats or short subdivisions for two lots pursuant to the procedures required by RCW 58.17.060, but not including further short subdivisions or short platting within a plat or subdivision previously exempted under this subsection.

2. Granting of variances based on special circumstances, not including economic hardship, such as size, shape, topography, location, or surroundings and not resulting in any change of land use or density. (Ord. 09-506 § 1 (Exh. A(part)), 2009: Ord. 04-438 § 1, 2004; Ord. 01-412 § 1 (Exh. 1(part)), 2001)

16.04.130 Use of exemptions.

A. Each department that receives an application or, in the case of governmental proposals, the department initiating the proposal, shall determine whether the proposal is exempt. The department’s determination that a proposal is exempt shall be final and not subject to administrative review. The Town will normally identify whether an action is categorically exempt within ten working days of the date of submission of a complete application and checklist. If a proposal is exempt, the procedural requirements of this chapter shall not apply to the proposal. The Town shall not require completion of an environmental checklist for an exempt proposal.

B. In determining whether a proposal is exempt, the department shall make certain the proposal is properly and fully defined and shall identify all governmental approvals required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency for the nonexempt action, even if the application that triggers the department’s consideration is exempt.

C. For proposals that include both exempt and nonexempt actions, the Town may authorize initiation of the exempt action prior to compliance of the nonexempt action with this chapter, except in the following cases:

1. The Town shall not give authorization for:

a. Any nonexempt action;

b. Any action that would have a probable significant adverse environmental impact; or

c. Any action that would limit the choice of alternatives under environmental review.

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 the associated nonexempt action(s) were not approved.

3. A department may withhold approval of exempt actions that would lead to substantial financial expenditures by an applicant when the expenditures would serve no purpose if the associated nonexempt action(s) were not approved. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.140 Environmental checklist.

A. Except as provided in subsection (D) of this section, 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 that is not specifically exempt from this chapter; except that 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 the threshold determination.

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

C. The Town 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 Town has technical information on a question or questions that are unavailable to the private applicant; or

2. The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.

D. For projects submitted as planned actions under WAC 197-11-164, the Town shall use its existing 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 shall be sent to the Department of Ecology to allow at least a thirty day review prior to use. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.150 DNS and mitigated DNS.

A. As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS or MDNS 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 97-11-350. The request must:

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

2. Precede the Town’s actual threshold determination for the proposal.

C. The responsible official should respond to a request for early notice within fifteen 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. To the extent possible, the Town should assist the applicant with identification of impacts as needed to formulate mitigation measures.

E. 1. 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 days of receiving the changed or clarified proposal. 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). If the Town indicated areas of concern but not 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.

2. Any mitigation measures (clarifications, changes or conditions) proposed by the applicant 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 two hundred-foot stormwater retention pond at Y location" may be deemed adequate by the responsible official.

3. 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 either WAC 197-11-340(2), requiring a fourteen day comment period and public notice, or WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.

G. Mitigation measures incorporated in the mitigated DNS, and all descriptions of the proposal, 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 (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 Town to consider or adopt the clarifications or changes in its threshold determination. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE FOUR--ENVIRONMENTAL IMPACT STATEMENT (EIS)

16.04.200 Purpose.

This Article Four sets forth the rules for preparing environmental impact statements. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.210 Adoption by reference.

The following sections of Washington Administrative Code Chapter 197-11 are adopted by reference:

197-11-400 Purpose of EIS.

197-11-402 General requirements.

197-11-405 EIS types.

197-11-406 EIS timing.

197-11-408 Scoping.

197-11-410 Expanded scoping.

197-11-420 EIS preparation.

197-11-425 Style and size.

197-11-430 Format.

197-11-435 Cover letter or memo.

197-11-440 EIS contents.

197-11-442 Contents of EIS on nonproject proposals.

197-11-443 EIS contents when prior nonproject EIS.

197-11-444 Elements of the environment.

197-11-448 Relationship of EIS to other considerations.

197-11-450 Cost-benefit analysis.

197-11-455 Issuance of DEIS.

197-11-460 Issuance of FEIS.

(Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.220 Preparation of EIS--Additional considerations.

A. Preparation of draft and final EIS’s (DEIS and FEIS) respectively, and draft and final supplemental EIS’s (SEIS), is the responsibility of the Town 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. The responsible official may require the applicant to select a consultant from a list of approved consultants, and/or may require the applicant to fund the consultant while allowing the responsible official to direct the consultant’s work.

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; provided that this shall not limit any request for information the Town may seek under another ordinance or statute. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE FIVE--COMMENTING

16.04.300 Purpose.

This Article Five sets forth rules for consulting on, commenting, and responding to environmental documents under SEPA, including rules for public notice and hearings. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.310 Adoption by reference.

The following sections of Washington Administrative Code Chapter 197-11 are adopted by reference:

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. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.320 Public notice.

A. Whenever possible, the Town shall integrate the public notice required under this section with other notice procedures for the Town’s nonexempt permit(s) or approval(s) required for the proposal.

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

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

2. 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).

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

a. Posting the property and posting in the Town Hall;

b. Publishing notice in the Town’s designated newspaper of record, which is a newspaper of general circulation in the Town or general area where the proposal is located; and

c. Notifying public or private groups which have timely expressed interest in writing in a certain proposal or in the type of proposal being considered.

4. 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 notice.

C. 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).

D. 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 approval; and

2. Posting the property and posting in the Town Hall; and

3. Publishing notice in the Town’s designated newspaper of record, which is a newspaper of general circulation in the Town or general area where the proposal is located; and

4. Notifying public or private groups which have timely expressed interest in writing in a certain proposal or in the type of proposal being considered.

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

F. The applicant shall complete the public notice requirements for the applicant’s proposal at his or her expense. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.330 Designation of official to perform consulted agency responsibilities for the Town.

A. The responsible official 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. The responsible official 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. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE SIX--USING EXISTING ENVIRONMENTAL DOCUMENTS

16.04.400 Purpose.

This Article Six sets forth rules for using and supplementing existing environmental documents prepared under SEPA or the National Environmental Policy Act (NEPA). (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.410 Adoption by reference.

The following sections of Washington Administrative Code Chapter 197-11 are adopted by reference:

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. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE SEVEN--SEPA AND AGENCY DECISIONS

16.04.500 Purpose.

This Article Seven sets forth rules and policies defining and exercising SEPA substantive authority, including without limitation decisions to condition, limit, mitigate or reject proposals. This article also sets forth procedures for appealing SEPA determinations. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.510 Adoption by reference.

The following sections of Washington Administrative Code Chapter 197-11 are adopted by reference:

197-11-650 Purpose of this part.

197-11-655 Implementation.

197-11-660 Substantive authority and mitigation.

197-11-680 Appeals.

(Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.520 Substantive authority.

A. The policies and goals set forth in this chapter are supplementary to any and all existing authority available to the Town.

B. The Town may condition, restrict, limit, deny or approve any proposed permit, license, project or proposal based on the following considerations:

1. The conditions, restrictions or limitations are reasonably required to mitigate or prevent specific adverse environmental impacts identified in analytical documents prepared pursuant to this chapter or the Woodway Municipal Code;

2. The conditions, restrictions or limitations are in writing and approved or adopted by the decisional body;

3. The conditions, restrictions or limitations are reasonably related to the services, demands or other impacts arising from the proposed permit, license or project, will mitigate or avoid the adverse impacts and are capable of being accomplished;

4. Whether other local, state or federal mitigation measures applied to the permit, license, project or proposal are sufficient to mitigate the identified impacts; and

5. The conditions, restrictions or limitations are based on one or more goals and policies identified in this section and cited in the permit, approval, 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 ordinance;

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 this section and identified in writing in the decision document.

D. For the purpose of providing substantive policies under WMC Chapter 16.04 and RCW Chapter 43.21C, the Town adopts and incorporates by reference each and every regulation, goal and policy in the following state laws, Town codes, ordinances, resolutions, plans, agreements, and regulations, all as they now exist or may hereinafter be adopted or amended; together with the rules, laws, ordinances, resolutions, regulations, plans, reports, administrative policies or technical reports which are incorporated by reference, underlie or are otherwise applicable to such laws, codes, ordinances, resolutions, plans, agreements and regulations, all as they now exist or may hereinafter be adopted or amended:

1. The State Environmental Policy Act, codified at RCW Chapter 43.21C;

2. The State Growth Management Act, first enacted as Laws of 1990, 1st Ex. Sess., Chapter 17, including without limitation subsequent amendments or modifications and all codifications set forth in RCW Chapters 36.70A through 36.70C together with all associated administrative regulations;

3. The Town of Woodway Comprehensive Plan as adopted and amended from time to time;

4. The Woodway Municipal Code, including without limitation each chapter and section;

5. Every intergovernmental and/or Interlocal Agreement between the Town of Woodway 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;

6. Park and/or Recreation Master Plans, Development Plans, or Use Plans developed or adopted by the Town;

7. Drainage, stormwater, transportation, development guidelines and other engineering plans or documents governing development and adopted by the Town;

8. Transportation Improvement Program, Capital Facilities Program, and other adopted infrastructure development programs of the Town.

E. The substantive policies set forth in this section may be amended from time to time by action of the Town Council through motion, resolution or ordinance and shall by that action be incorporated into this section as a substantive SEPA policy. It shall not be a prerequisite for the application of any substantive policy adopted under this section that it be expressly set forth above by name or title, but it shall be sufficient that such document is referenced by subject matter description and is available from the Town upon request. As an alternative to any other specified method of adopting and incorporating substantive SEPA policies adopted by the Town after the effective date of this amended section, it shall be sufficient that a substantive policy document is approved or otherwise adopted by the Town Council and recites that it is a substantive policy under the authority of RCW Chapter 43.21C and/or WMC Chapter 16.04. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.525 Appeals.

A. Any person adversely affected by the following decisions may appeal a threshold determination or adequacy of a final EIS pursuant to the procedures set forth in this section. No other SEPA appeal shall be allowed.

B. All appeals filed pursuant to this section must be filed in writing with the Town Clerk within fifteen calendar days from the date of decision being appealed. The appeal shall attach a copy of the decision being appealed, shall identify the appellant and his/her interest, shall contain a plain and concise statement of the issues raised, the reasons for the appeal, and the relief sought, and shall be accompanied by the required fee.

C. On receipt of a timely written notice of appeal, the Mayor shall advise the Hearing Examiner of the pendency of the appeal and request that he/she set a date for considering the appeal.

D. The Hearing Examiner shall conduct the appeal hearing in accordance with the Hearing Examiner’s rules of procedure. All relevant evidence shall be received during the hearing. The Examiner’s decision shall be made based on the testimony and materials submitted during the hearing. The Examiner may make a site visit. The procedural determination by the Town’s responsible official shall carry substantial weight in the hearing. The Examiner shall issue written findings and conclusions within fifteen working days of concluding the hearing.

E. Judicial review of the Examiner’s decision may only be to Snohomish County Superior Court in conjunction with an appeal of the underlying action, in accordance with RCW 43.21C.075. Any such appeal must be brought within the time limits specified in RCW 36.70C.040. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.530 Notice/statute of limitations.

A. The Town, 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 Town Clerk or Snohomish County auditor, applicant or proponent pursuant to RCW 43.21C.080. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE EIGHT--DEFINITIONS

16.04.600 Purpose.

This Article Eight sets forth uniform usage and definitions of terms for WMC Chapter 16.04. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.610 Adoption by reference.

The following sections of Washington Administrative Code Chapter 197-11 are adopted by reference:

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.

197-11-724 Consulted agency.

197-11-726 Cost-benefit analysis.

197-11-728 County/Town.

197-11-730 Decision maker.

197-11-732 Department.

197-11-734 Determination of Nonsignificance (DNS).

197-11-736 Determination of significance (DS).

197-11-738 EIS.

197-11-740 Environment.

197-11-742 Environmental checklist.

197-11-744 Environmental document.

197-11-746 Environmental review.

197-11-750 Expanded scoping.

197-11-752 Impacts.

197-11-754 Incorporation by reference.

197-11-756 Lands covered by water.

197-11-758 Lead agency.

197-11-760 License.

197-11-762 Local agency.

197-11-764 Major action.

197-11-766 Mitigated DNS.

197-11-768 Mitigation.

197-11-770 Natural environment.

197-11-772 NEPA.

197-11-774 Nonproject.

197-11-775 Open record hearing.

197-11-776 Phased review.

197-11-778 Preparation.

197-11-780 Private project.

197-11-782 Probable.

197-11-784 Proposal.

197-11-786 Reasonable alternative.

197-11-788 Responsible official.

197-11-790 SEPA.

197-11-792 Scope.

197-11-793 Scoping.

197-11-794 Significant.

197-11-796 State agency.

197-11-797 Threshold determination.

197-11-799 Underlying governmental action.

(Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE NINE--CATEGORICAL EXEMPTIONS

16.04.700 Purpose.

This Article Nine sets forth the categorical exemptions which are those actions exempt from review under this chapter. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.710 Adoption by reference.

The following sections of the Washington Administrative Code Chapter 197-11 are adopted by this reference:

197-11-800 Categorical exemptions, to the extent that these exemptions are consistent with categorical exemptions of WMC Section 16.04.120.

197-11-880 Emergencies.

197-11-890 Petitioning DOE to change exemptions.

(Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE TEN--AGENCY COMPLIANCE

16.04.800 Purpose.

This Article Ten sets forth general rules, including rules for charging fees, designating categorical exemptions that do not apply within critical areas, listing agencies with environmental expertise, selecting the lead agency, and applying these rules to current agency activities. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.810 Adoption by reference.

The following sections of Chapter 197-11 WAC are adopted by reference:

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/town.

197-11-934 Lead agency for private projects requiring licenses from a local agency, not a county/town, 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. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.815 Critical areas.

Development activities to be undertaken on lands which contain environmentally critical areas as designated in Chapter 16.10 are not exempt from the provisions of the State Environmental Policy Act and/or the provisions of this chapter regardless of whether the proposed activity could be categorically exempt under Sections 16.04.120 and/or 16.04.710. (Ord. 09-506 § 1 (Exh. A(part)), 2009: Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.820 Fees.

The following fees shall apply to the following activities. These fees may be changed or amended by resolution of the Town Council without the need to amend this section.

A. Threshold Determination. For every environmental checklist the town reviews as lead agency, the town shall collect the fee as set forth in Section 3.32.010 from the proponent of the proposal prior to undertaking the threshold determination. The time periods for making a threshold determination shall not begin to run until payment of the fee. When the town completes the environmental checklist at the applicant’s request or under Section 16.04.140, an additional fee as set forth in Section 3.32.010 shall be collected.

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 as required by the town fee schedule from any applicant to cover costs incurred by the town in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; and the applicant shall post a bond or otherwise ensure payment of such costs before work commences and continues.

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 a person or entity other than the town and may bill such costs and expenses directly to the applicant, person or entity. The town may require the applicant to post a bond or otherwise ensure payment of such costs before work commences and continues. Such consultants shall be selected by mutual agreement of the town and applicant.

3. If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under subsection A or B of this section which remain unspent after all incurred costs and fees are paid.

C. The town shall collect from the applicant the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

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

E. Instead of collecting the fee described in this section, the town may, at its discretion, track and collect for all actual direct and indirect costs incurred in performing work under this chapter for an applicant. (Ord. 04-431 § 19, 2004; Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

ARTICLE ELEVEN--FORMS

16.04.900 Purpose.

The purpose of this Article Eleven is to provide for uniform submittal of information on standardized forms and applications. (Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

16.04.920 Adoption by reference.

The following forms and sections of Chapter 197-11 WAC are adopted by reference:

197-11-960 Environmental checklist.

197-11-965 Adoption notice.

197-11-970 Determination of Nonsignificance (DNS).

197-11-980 Determination of significance and scoping notice (DS).

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

197-11-990 Notice of action.

(Ord. 01-412 § 1 (Exh. 1 (part)), 2001)

Prior ordinance history: Ords. 00-397, 242, 161.