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 county adopts the following sections by reference:
WAC 197-11-650
Purpose of this part.
WAC 197-11-655
Implementation.
WAC 197-11-660
Substantive authority and mitigation.
WAC 197-11-680
Appeals.
(Ord. 84-122 Part 7 (part); Ord. 98-048 Exh. A)
A. 
When there are grounds independent of SEPA that merit denial of a proposal that is undergoing preparation of a SEPA environmental impact statement (EIS), whether ongoing or postponed by the applicant, the county shall deny the application(s) related to the proposal, following receipt of a recommendation of denial from the responsible official, if the following requirements are met:
1. 
The proposal is one for which the responsible official has issued a determination of significance or an early notice of the likelihood of a determination of significance, as defined in WCC § 16.08.175; and
2. 
Continued preparation or completion of the EIS is no longer justified because either:
a. 
The applicant has applied for a rezone for which there is a direct conflict with an express limitation adopted in a county plan, policy or regulation, which conflict could not be mitigated through measures identified in an EIS; or
b. 
Prior to completion of the EIS, the applicant has received a denial of a necessary permit or other authorization by another federal, state or local agency with jurisdiction on grounds independent of SEPA, without which the project cannot go forward.
B. 
Any denial or recommendation of denial shall be supported by express written findings or conclusions in conformance with subsection A of this section.
C. 
Procedure. The following is applicable to any project proposal for which an EIS has been required:
1. 
When the responsible official determines that the requirements of subsection A of this section are met, within 30 days he or she shall issue a recommendation of denial and set a hearing before the hearing examiner pursuant to Chapter 22.05 WCC. The recommendation shall provide proposed written findings and conclusions to the hearing examiner demonstrating how the provisions of subsection A of this section are met.
2. 
The examiner shall hold an open record hearing pursuant to Chapter 22.05 WCC and issue a decision, with findings and conclusions, on whether an order of denial should be entered pursuant to this section.
3. 
The decision of the hearing examiner shall be a final decision appealable to the county council pursuant to WCC § 22.05.160(2).
D. 
SEPA Compliance. Any denial under this section does not constitute a separate action requiring a new threshold determination.
(Ord. 2017-005 Exh. A)
A. 
The policies and goals set forth in this chapter are supplementary to those in the existing authorization of Whatcom County.
B. 
The county 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 county 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 or provisions in subsection D, E or F of this section and cited in the license or other decision document.
C. 
The county 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 or provisions identified in subsection D or F of this section and identified in writing in the decision document.
D. 
The county designates and adopts by reference the following policies as the basis for the county's exercise of SEPA authority pursuant to this section:
1. 
The county shall use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:
a. 
Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
b. 
Assure for all people of 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 county 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.
3. 
The county adopts by reference the policies in the following county documents:
Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components)
Whatcom County Shoreline Management Program
Whatcom County Subdivision Ordinance
Whatcom County Solid Waste Management Plan
Whatcom County Critical Areas Ordinance
All official land use controls adopted by Whatcom County.
E. 
Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed by these SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific adverse environmental impact has been adequately addressed by an existing rule or law of another agency with jurisdiction, the county shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the county shall base or condition its project approval on compliance with these other existing rules or laws. The county shall not so defer if such regulations did not anticipate or are otherwise inadequate to address a particular impact of a project or would be less restrictive than county code.
F. 
Specific Environmental Policies.
1. 
Air Quality and Climate.
a. 
Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality of life. Mitigation of air pollutant impacts will normally be the subject of air permits required by the Northwest Clean Air Agency (NWCAA) and/or State Department of Ecology (DOE) and no further mitigation by the county shall be required. However, where a project being reviewed by the county generates public nuisance impacts, odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, the county may require mitigation under SEPA.
b. 
Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads, dikes and critical infrastructure such as water and waste treatment facilities. While climate change is a global phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be authorized by the county address greenhouse gas emissions impacts.
i. 
Greenhouse Gas Emissions. The following shall apply to projects that: (1) are expansions of fossil fuel refineries and fossil fuel transshipment facilities, as defined in WCC § 20.68.153 and § 20.68.154, or new, or expansion of renewable fuel refineries and renewable fuel transshipment facilities; and (2) will have reasonably foreseeable, probable, direct greenhouse gas emissions resulting from new or modified equipment of greater than 10,000 MT/year (CO2e) as determined by the Northwest Clean Air Agency using methodology consistent with 40 CFR § 98.253, Calculating GHG Emissions (for Petroleum Refineries), and 40 CFR § 98.33, Calculating GHG Emissions (for Stationary Fuel Combustion Sources), as applicable.
(A) 
Emissions Assessed. The SEPA responsible official shall require assessment of the lifecycle greenhouse gas emissions of the project, with a focus on the reasonably foreseeable, probable, direct and indirect, gross greenhouse gas emissions caused by the project, consistent with WAC 197-11-060(4)(d). The assessment shall estimate the incremental gross direct emissions change from a baseline established in current prevention of significant deterioration and/or minor new source review permit technical support documents.
(B) 
Impact Assessment. Greenhouse gas emissions impacts shall be assessed using current scientifically valid modeling techniques, accounting for project emissions and gross increases of existing direct emissions resulting from the proposed expansion project. The range of greenhouse gas emissions impacts assessed may be greater than the range of greenhouse gas emissions impacts for which mitigation is required.
(C) 
Mitigation. The county decision maker shall require the applicant to identify options for mitigation of greenhouse gas emissions that are caused by the project pursuant to WAC 197-11-660 and subsection (B) of this section, and in accordance with the following considerations:
(1) 
Mitigation measures must be imposed on the permittee as provided in WAC 197-11-660(1)(d). The county decision maker must require mitigation to address the project's direct greenhouse gas emissions and may require mitigation to address the project's indirect emissions. Voluntary additional mitigation may occur, per WAC 197-11-660(1)(d). Mitigation shall not be required for projects shown in SEPA assessment to reduce greenhouse gas emissions of existing facilities on a lifecycle basis.
(2) 
The SEPA responsible official shall not require duplicative mitigation of greenhouse gas emissions (MT CO2e) that are reasonably foreseeable, probable, and caused by the project to the extent these emissions or a portion of these emissions are otherwise mitigated under other local, state, or federal laws, rules, or permits.
(3) 
Mitigation may be achieved through on-site mitigation measures, such as efficiency improvements and reduced generation, and through local and regional projects, so long as such measures or projects are reasonable, capable of being accomplished, are likely to protect or enhance environmental quality, and meet current state rules and standards. Alternatively, mitigation may be achieved through (a) projects located outside of the local area/region, or (b) through purchase of carbon offsets from any carbon registry approved by the planning department, NWCAA, or any Washington state agency, subject to the provisions of subsection (F)(1)(b)(i)(C)(6) of this section. Mitigations for the project being permitted may concurrently satisfy any other requirements imposed by county, state or federal governments for the same project.
(4) 
When considering the total mitigation required, a multiplier of 1.5 shall be applied to the tonnage of all mitigations performed locally (including those selected from the current Whatcom County Climate Action Plan) after August 8, 2021, as a means to encourage local investment. This multiplier shall not apply to emission reduction units generated by and purchased from local third-party projects or activities that were implemented prior to August 8, 2021.
(5) 
Applicants are encouraged, but not required, to select mitigation proposals from the Whatcom County Climate Action Plan and to select projects that yield energy efficiency gains, local economic benefits such as creation of jobs with living wage or use of prevailing wages, and/or local economic development.
(6) 
Mitigations based on emissions reductions from activities or programs must be: (a) real, specific, identifiable, and quantifiable; (b) permanent; (c) enforceable; (d) verifiable; and (e) except as allowed by subsection (F)(1)(b)(i)(C)(3) of this section, additional to reductions required under other laws, rules, or permits for unrelated projects or expansions.
(7) 
The county decision maker may not deny a permit based upon lack of availability of local or regional mitigation.
(D) 
Should a Washington state greenhouse gas assessment and mitigation permitting or project requirement be adopted, such as a rule adopted pursuant to the Washington Governor's Directive 19-18, Environmental Assessment of Greenhouse Gas Emissions, subsection (F)(1)(b)(i) of this section shall no longer apply as of the effective date of the requirement or rule. Should a new federal greenhouse gas assessment and mitigation permitting or project requirement with the same force and effect of subsection (F)(1)(b)(i) of this section be adopted, subsection (F)(1)(b)(i) of this section shall no longer apply as of the effective date of the requirement or rule.
ii. 
Greenhouse Gas Emissions – Other Uses Within the Heavy Impact Industrial District.
(A) 
Method of Analysis. Determined by SEPA responsible official following consultation with federal and state agencies with jurisdiction or expertise.
(B) 
Mitigation. Determined by SEPA Responsible Official. See subsection (F)(1)(c) of this section.
c. 
It is the county's policy to minimize or prevent adverse air quality impacts. Federal, state, regional, and county regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts. If the decision maker makes a written finding that the applicable federal, state, regional, and/or county regulations did not anticipate or are inadequate to address the particular impact(s) of the project, the decision maker may condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deny a project under the provisions of the State Environmental Policy Act.
2. 
Plants and Animals.
a. 
Many species of birds, mammals, fish, and other classes of animals and plants live in both rural and urban environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of ecological, educational, and economic value include priority habitats and species as listed in the Washington Department of Fish and Wildlife's Priority Habitats and Species, as amended, consistent with WCC § 16.16.710, and High Biodiversity Value Areas per the Whatcom County 2017 Ecosystem Report, as amended.
b. 
It is the county's policy to minimize or prevent the loss of fish and wildlife habitat that has substantial ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be given to anadromous fisheries and marine mammals.
c. 
The decision maker may condition or deny the project to mitigate its specific adverse environmental impacts if the decision maker finds that a proposed project would reduce or damage rare, uncommon, unique or exceptional plant or wildlife habitat, designated wildlife corridors, or habitat diversity for plants or animals species of substantial educational, ecological, or economic value, or interfere with treaty rights, clean water rights, or endangered species protection.
(Ord. 84-122 Part 7 (part); Ord. 92-33 § 3; Ord. 98-048 Exh. A; Ord. 2021-046 § 2 (Exh. B))
Except for permits and variances issued pursuant to the shoreline management program of the county, when any proposal or action not requiring a decision of the county council is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the county council. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within 10 days of the decision being appealed. Review by the county council shall be on a de novo basis.
(Ord. 98-048 Exh. A)
A. 
Whatcom County establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:
1. 
Any agency or aggrieved party may appeal the county's procedural compliance with Chapter 197-11 WAC for issuance of the following by filing with the county department of planning and development services (see WCC § 16.08.200.A.2 for fee):
a. 
Appeal of the final DNS, following the comment period when applicable, must be made to the hearing examiner within 10 days of the date the DNS is final (see WAC 197-11-390(2)(a));
b. 
Appeal of a DS must be made to the hearing examiner within 10 days of the date the DS is issued.
2. 
For any appeal under this subsection, the county shall provide a record of review that shall consist of the following:
a. 
Findings and conclusions;
b. 
Testimony under oath; and
c. 
A taped or written transcript.
3. 
The procedural determination by the county's responsible official shall carry substantial weight in any appeal proceeding.
4. 
The hearing examiner shall reverse the threshold determination of the responsible official if the determination is found to be clearly erroneous. A determination is clearly erroneous when, although there is evidence to support it, the hearing examiner, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.
B. 
The county shall give official notice under WAC 197-11-680(5) whenever it issues a permit or approval for which a statute or ordinance establishes a time limit for commencing judicial appeal.
(Ord. 84-122 Part 7 (part); Ord. 98-048 Exh. A)
A. 
The county, 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 responsible official, applicant or proponent pursuant to RCW 43.21C.080.
(Ord. 84-122 Part 7 (part); Ord. 98-048 Exh. A)