This article contains the rules for deciding whether a proposal has a "probable significant, adverse environmental impact" requiring an EIS to be prepared. This article also contains rules for evaluating the impacts of proposals not requiring an EIS. The county adopts the following sections by reference, as supplemented in this part:
WAC 197-11-300
Purpose of this part.
WAC 197-11-305
Categorical exemptions.
WAC 197-11-310
Threshold determination required.
WAC 197-11-315
Environmental checklist.
WAC 197-11-330
Threshold determination process.
WAC 197-11-335
Additional information.
WAC 197-11-340
Determination of nonsignificance (DNS).
WAC 197-11-350
Mitigated DNS.
WAC 197-11-355
Optional DNS process.
WAC 197-11-360
Determination of significance (DS)/initiation of scoping.
WAC 197-11-390
Effect of threshold determination.
WAC 197-11-800
Categorical exemptions.
WAC 197-11-880
Emergencies.
WAC 197-11-890
Petitioning Ecology to change exemptions.
(Ord. 84-122 Part 3 and Part 9 (part); Ord. 98-048 Exh. A)
A. 
Whatcom County establishes the following categorically exempt levels for projects requiring county permits under WAC 197-11-800(1)(b):
1. 
For residential dwelling units in WAC 197-11-800(1)(c)(i): up to four dwelling units;
2. 
For agricultural structures in WAC 197-11-800(1)(c)(ii): up to 30,000 square feet;
3. 
For office, school, commercial, recreational, service or storage buildings in WAC 197-11-800(1)(c)(iii): up to 12,000 square feet;
4. 
For the construction of a parking lot in WAC 197-11-800(1)(c)(iv): up to 40 parking spaces;
5. 
For landfill or excavations in WAC 197-11-800(1)(c)(v): up to 500 cubic yards;
6. 
Fish, wildlife and/or wetland enhancement activities; provided, that the project is approved by either the U.S. Department of Fish and Wildlife or the Washington State Department of Fish and Wildlife.
B. 
Whenever the county establishes new exempt levels under this section, it shall send them to the Department of Ecology, Headquarters Office, Olympia, Washington, 98504, under WAC 197-11-800(1)(c).
(Ord. 84-122 Part 3 (part); Ord. 92-33 § 2; Ord. 98-048 Exh. A)
A. 
Each department within the county 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 county shall not require completion of an environmental checklist for an exempt proposal.
B. 
In determining whether or not a proposal is exempt, the department shall make certain the proposal is properly defined and shall identify the governmental licenses required (WAC 197-11-060). If a proposal includes exempt and nonexempt actions, the department shall determine the lead agency, even if the license application that triggers the department's consideration is exempt.
C. 
If a proposal includes both exempt and nonexempt actions, the county may authorize exempt actions prior to compliance with the procedural requirements of this chapter, except that:
1. 
The county 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 modifications would serve no purpose if nonexempt action(s) were not approved; and
3. 
A department may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant when the expenditures would serve no purpose if nonexempt action(s) were not approved.
(Ord. 84-122 Part 3 (part); Ord. 98-048 Exh. A)
A. 
A completed environmental checklist 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 county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. Except as provided in subsection D of this section, the checklist shall be on a form provided by the county, which is in the form of WAC 197-11-960 with additions required by the responsible official in accordance with WAC 197-11-906(4). The county shall use the environmental checklist to determine the lead agency and, if the county is the lead agency, for determining the responsible official and for making the threshold determination. A checklist submittal shall include any checklist review fee specified in the county's uniform fee schedule.
B. 
For private proposals, the county will require the applicant to complete the environmental checklist, providing assistance as necessary. For county proposals, the department initiating the proposal shall complete the environmental checklist for that proposal.
C. 
The county may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:
1. 
The county has technical information on a question or questions that is unavailable to the private applicant; or
2. 
The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.
D. 
For proposals submitted as planned actions under WAC 197-11-164, the county shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. If a modified form is prepared, it must be sent to the Department of Ecology to allow at least a 30-day review prior to use.
E. 
Evaluation/Worksheet for Fossil and Renewable Fuel Facilities. Air and environmental health are elements of the environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in WAC 197-11-906(1)(c), Whatcom County hereby adds a procedure and criteria to help identify the affected environment, impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For any proposed expansion of facilities pursuant to and in accordance with WCC § 20.68.153 or § 20.68.154 or any new or expansions of a renewable fuel refinery or renewable fuel transshipment facility, the proponent will provide an expert evaluation or fill out the county's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." This expert evaluation or worksheet provides detailed information required to evaluate impacts to air, land and water during review of a SEPA environmental checklist. The form of the worksheet shall be prepared and updated as needed by the SEPA responsible official in consultation with the planning commission and the county council. The expert evaluation or worksheet shall analyze the "significance" of direct, indirect, and cumulative impacts arising from:
1. 
Windborne transport of fossil or renewable fuel emissions across Whatcom County;
2. 
Lifecycle greenhouse gas emissions for the project's incremental change for renewable facilities and fossil fuel facilities;
3. 
Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or interfere with commercial and treaty tribe fishing areas;
4. 
Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the shorelines, and to their headwaters; and
5. 
Potential for loss of life and/or property related to risks from spills or explosions associated with refining and transport of renewable or fossil fuels or related feedstocks within Whatcom County.
In determining whether possible impacts are "significant" and "probable," the responsible official shall determine whether the information in the expert evaluation or the worksheet accurately analyzes the severity of potential harm, independently from analysis of probability of occurrence, in compliance with WAC 197-11-330. Also, as provided in WAC 197-11-794, "the severity of an impact should be weighed along with the likelihood of its occurrence" and "an impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred."
The information provided in the expert evaluation or worksheet required for fossil and renewable fuel facilities shall be considered procedures and criteria added to Whatcom County's SEPA policies and procedures pursuant to WAC 197-11-906(1)(c) and are deemed necessary to be consistent with the provisions of SEPA contained in RCW 43.21C.020, 43.21C.030 and 43.21C.031. However, the expert evaluation or worksheet may not be required if an environmental impact statement is prepared.
(Ord. 84-122 Part 3 (part); Ord. 98-048 Exh. A; Ord. 2020-045 § 1 Exh. A; Ord. 2021-046 § 2 (Exh. B))
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 county is lead agency; and
2. 
Precede the county's actual threshold determination for the proposal.
C. 
The responsible official should respond to the request for early notice within 10 working days. The response shall:
1. 
Be written;
2. 
State whether the county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the county to consider a DS; and
3. 
State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.
D. 
As much as possible, the county should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.
E. 
When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the county shall base its threshold determination on the changed or clarified proposal and should make the determination within 15 days of receiving the changed or clarified proposal:
1. 
If the county indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the county shall issue and circulate a DNS under WAC 197-11-340(2).
2. 
If the county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the county 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 an MDNS may be incorporated in the threshold determination by reference to agency staff reports, studies or other documents.
F. 
An MDNS is issued under either WAC 197-11-340(2), requiring a 14-day comment period and public notice, or WAC 197-11-355(5), which may require no additional comment period beyond the comment period on the notice of application.
G. 
Mitigation measures incorporated in the MDNS 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 county.
H. 
If the county's tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the county should evaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (Withdrawal of DNS).
I. 
The county's written response under subsection C 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 county to consider the clarifications or changes in its threshold determination.
(Ord. 84-122 Part 3 (part); Ord. 98-048 Exh. A)