This chapter contains the City’s laws that implement the State Environmental Policy Act (Chapter 43.21C RCW). This chapter contains several references to Chapter 197-11 WAC, which also implements the State Environmental Policy Act. Subsections of this chapter may reference sections of Chapter 197-11 WAC that are adopted by reference. These WAC sections, as well as Chapter 43.21C RCW, should be consulted for complete information regarding SEPA.
(Ord. 11-0329 § 3 (Exh. 1))
A. 
The City adopts by reference the following sections of the WAC which contain information on the usage and definition of terms under SEPA:
WAC 197-11-040
Definitions;
WAC 197-11-220
SEPA/GMA definitions;
WAC 197-11-700
Definitions;
WAC 197-11-702
Act;
WAC 197-11-704
Action;
WAC 197-11-706
Addendum;
WAC 197-11-708
Adoption;
WAC 197-11-710
Affected tribe;
WAC 197-11-712
Affecting;
WAC 197-11-714
Agency;
WAC 197-11-716
Applicant;
WAC 197-11-718
Built environment;
WAC 197-11-720
Categorical exemption;
WAC 197-11-721
Closed record appeal;
WAC 197-11-722
Consolidated appeal;
WAC 197-11-724
Consulted agency;
WAC 197-11-726
Cost-benefit analysis;
WAC 197-11-728
County/city;
WAC 197-11-730
Decision maker;
WAC 197-11-732
Department;
WAC 197-11-734
Determination of nonsignificance (DNS);
WAC 197-11-736
Determination of significance (DS);
WAC 197-11-738
EIS;
WAC 197-11-740
Environment;
WAC 197-11-742
Environmental checklist;
WAC 197-11-744
Environmental document;
WAC 197-11-746
Environmental review;
WAC 197-11-750
Expanded scoping;
WAC 197-11-752
Impacts;
WAC 197-11-754
Incorporation by reference;
WAC 197-11-756
Lands covered by water;
WAC 197-11-758
Lead agency;
WAC 197-11-760
License;
WAC 197-11-762
Local agency;
WAC 197-11-764
Major action;
WAC 197-11-766
Mitigated DNS;
WAC 197-11-768
Mitigation;
WAC 197-11-770
Natural environment;
WAC 197-11-772
NEPA;
WAC 197-11-774
Nonproject;
WAC 197-11-775
Open record hearing;
WAC 197-11-776
Phased review;
WAC 197-11-778
Preparation;
WAC 197-11-780
Private project;
WAC 197-11-782
Probable;
WAC 197-11-784
Proposal;
WAC 197-11-786
Reasonable alternative;
WAC 197-11-788
Responsible official;
WAC 197-11-790
SEPA;
WAC 197-11-792
Scope;
WAC 197-11-793
Scoping;
WAC 197-11-794
Significant;
WAC 197-11-796
State agency;
WAC 197-11-797
Threshold determination;
WAC 197-11-799
Underlying governmental action.
B. 
The following abbreviations are used in this chapter:
1. 
SEPA – State Environmental Policy Act;
2. 
DNS – Determination of nonsignificance;
3. 
DOE – Washington State Department of Ecology;
4. 
DS – Determination of significance;
5. 
EIS – Environmental impact statement.
(Ord. 11-0329 § 3 (Exh. 1))
The procedures and standards regarding lead agency responsibility contained in the following sections of the WAC are adopted:
WAC 197-11-050
Lead agency;
WAC 197-11-900
Purpose of this part;
WAC 197-11-922
Lead agency rules;
WAC 197-11-924
Determining lead agency;
WAC 197-11-926
Lead agency for governmental proposals;
WAC 197-11-928
Lead agency for public and private proposals;
WAC 197-11-930
Lead agency for private projects with one agency with jurisdiction;
WAC 197-11-932
Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city;
WAC 197-11-934
Lead agency for private projects requiring licenses from a local agency, not a county/city; and one or more state agencies;
WAC 197-11-936
Lead agency for private projects requiring licenses from more than one state agency;
WAC 197-11-938
Lead agencies for specific proposals;
WAC 197-11-940
Transfer lead agency status to a state agency;
WAC 197-11-942
Agreements on lead agency status;
WAC 197-11-944
Agreements on division of lead agency duties;
WAC 197-11-946
DOE resolution of lead agency disputes;
WAC 197-11-948
Assumption of lead agency status.
(Ord. 11-0329 § 3 (Exh. 1))
For all proposals for which the City is the lead agency, the responsible official shall be the city manager. For these proposals, the responsible official shall make the threshold determination, supervise scoping and preparation of any required EIS, and perform any other functions assigned to the “lead agency” or “responsible official” by this chapter.
(Ord. 11-0329 § 3 (Exh. 1))
The procedures and standards regarding the general requirements that apply to the SEPA process are adopted:
SEPA 197-11-055
Timing of the SEPA process;
SEPA 197-11-060
Content of environmental review;
SEPA 197-11-070
Limitations on action during SEPA process;
SEPA 197-11-080
Incomplete or unavailable information;
SEPA 197-11-090
Supporting documents;
SEPA 197-11-100
Information required of applicants;
SEPA 197-11-158
GMA project review – Reliance on existing plans, laws and regulations;
SEPA 197-11-238
Monitoring;
SEPA 197-11-300
Purpose of this part;
SEPA 197-11-650
Purpose of this part;
SEPA 197-11-655
Implementation;
SEPA 197-11-900
Purpose of this part;
SEPA 197-11-902
Agency SEPA policies;
SEPA 197-11-904
Agency SEPA procedures;
SEPA 197-11-906
Content and consistency of agency procedures;
SEPA 197-11-910
Designation of responsible official;
SEPA 197-11-912
Procedures of consulted agencies;
SEPA 197-11-916
Application to ongoing actions;
SEPA 197-11-920
Agencies with environmental expertise.
A. 
The optional provision of WAC 197-11-060(3)(c) is adopted.
B. 
Under WAC 197-11-100, the applicant shall prepare the initial environmental checklist. The department shall make a reasonable effort to verify the information in the environmental checklist and shall have the authority to determine the final content of the environmental checklist.
C. 
The city manager may set reasonable deadlines for the submittal of information, studies, or documents necessary for, or subsequent to, threshold determinations. Failure to meet such deadlines shall cause the application to be deemed withdrawn, and plans or other data previously submitted for review may be returned to the applicant together with any unexpended portion of the application review fees.
(Ord. 11-0329 § 3 (Exh. 1))
The City adopts by reference the following sections of the WAC which contain information on categorical exemptions:
WAC 197-11-305
Categorical exemptions;
WAC 197-11-800
Categorical exemptions;
WAC 197-11-880
Emergencies;
WAC 197-11-890
Petitioning DOE to change exemptions;
WAC 197-11-908
Critical areas
A. 
The following exempt threshold levels are hereby established pursuant to WAC 197-11-800(1)(c) except as provided in WAC 197-11-305 and 197-11-800(1)(a):
1. 
The construction or location of any residential structures of 20 or fewer dwelling units;
2. 
The construction of a barn, loafing shed, farm equipment storage building, produce storage or packing structure, or similar agricultural structure, covering 30,000 square feet and to be used only by the property owner or his or her agent in the conduct of farming the property. This exemption shall not apply to feed lots;
3. 
The construction of an office, school, commercial, recreational, service or storage building with 12,000 square feet of gross floor area, and with associated parking facilities designed for 40 automobiles;
4. 
The construction of a parking lot designed for 40 automobiles;
5. 
Any fill or excavation of 500 cubic yards throughout the total lifetime of the fill or excavation and any fill or excavation classified as a Class I, II, or III forest practice under RCW 76.09.050 or regulation thereunder.
B. 
The following categorical exemptions do not apply in frequently flooded areas (flood hazard areas) pursuant to WAC 197-11-908:
3. 
WAC 197-11-800(2)(e), except that for residential structures, addition or modification of floor area above the ground floor that does not increase the ground floor area shall continue to be exempt; provided, that the cost of the addition or modification does not exceed 50 percent of the market value of the existing structure;
6. 
WAC 197-11-800(23)(a), (b), (c), (d), and (g), except that repair and maintenance that does not change the action from an exempt class shall continue to be exempt; and
C. 
The determination of whether a proposal is categorically exempt shall be made by the department.
(Ord. 11-0329 § 3 (Exh. 1); Ord. 12-0337 § 1)
The following section of the WAC regarding substantive authority and mitigation is adopted: 197-11-660 Substantive authority and mitigation.
A. 
For the purposes of RCW 43.21C.060 and WAC 197-11-660(a), the following policies, plans, rules and regulations, and all amendments thereto, are designated as potential bases for the exercise of the City’s substantive authority under SEPA, subject to the provisions of RCW 43.21C.240 and subsection B of this section:
1. 
The policies of the State Environmental Policy Act, RCW 43.21C.020;
2. 
The City of Kenmore comprehensive plan, its addenda, and revisions and neighborhood and subarea plans;
3. 
Surface water management plans;
4. 
The City of Kenmore grading regulations, Chapter 15.25 KMC;
5. 
The City of Kenmore land division regulations, KMC Title 17;
6. 
The City of Kenmore zoning code, KMC Title 18;
7. 
The City of Kenmore landmarks preservation code, Chapter 2.20 KMC;
8. 
The City of Kenmore noise regulations, Chapter 8.05 KMC;
9. 
The City of Kenmore shoreline management and flood hazard codes, KMC Title 16;
10. 
The City of Kenmore surface water runoff policy, Chapter 13.35 KMC;
11. 
The City of Kenmore water quality standards, Chapter 13.45 KMC;
12. 
The City of Kenmore street regulations, KMC Title 12.
B. 
Substantive SEPA authority to condition or deny new development proposals or other actions shall be used only in cases where specific adverse environmental impacts are not addressed by regulations as set forth above or unusual circumstances exist. In cases where the City has adopted regulations to systematically avoid or mitigate adverse impacts, those standards and regulations will normally constitute adequate mitigation of the impacts of new development. Unusual circumstances related to a site or to a proposal, as well as environmental impacts not mitigated by the regulations, will be subject to site-specific or project-specific SEPA mitigation.
C. 
Any decision to deny or approve with conditions pursuant to RCW 43.21C.060 shall be contained in a responsible official’s decision document. The written decision shall contain facts and conclusions based on the proposal’s specific adverse environmental impacts as identified in an environmental checklist, EIS, threshold determination, other environmental document including a department staff report and recommendation to a decisionmaker, or findings made pursuant to a public hearing authorized or required by law or ordinance. The decision document shall state the specific plan, policy or regulation which supports the SEPA decision and, if mitigation beyond existing development regulations is required, the specific adverse environmental impacts and the reasons why additional mitigation is needed to comply with SEPA.
D. 
This chapter shall not be construed as a limitation on the authority of the City to approve, deny or condition a proposal for reasons based upon other statutes, ordinances or regulations.
(Ord. 11-0329 § 3 (Exh. 1))
The City adopts by reference the following sections of the WAC which contain related information:
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 197-11-360
Determination of significance (DS)/initiation of scoping;
WAC 197-11-390
Effect of threshold determination;
WAC 197-11-660
Substantive authority and mitigation
The mitigated DNS provision of WAC 197-11-350 shall be enforced as follows:
A. 
If the department issues a mitigated DNS, conditions requiring compliance with the mitigation measures which were specified in the application and environmental checklist shall be deemed conditions of any decision or recommendation of approval of the action.
B. 
If at any time the proposed mitigation measures are withdrawn or substantially changed, the responsible official shall review the threshold determination and, if necessary, may withdraw the mitigated DNS and issue a DS.
(Ord. 11-0329 § 3 (Exh. 1))
The following sections of the WAC related to procedures and standards for preparation of environmental impact statements and other environmental documents are adopted:
WAC 197-11-400
Purpose of EIS;
WAC 197-11-402
General requirements;
WAC 197-11-405
EIS types;
WAC 197-11-406
EIS timing;
WAC 197-11-408
Scoping;
WAC 197-11-410
Expanded scoping;
WAC 197-11-420
EIS preparation;
WAC 197-11-425
Style and size;
WAC 197-11-430
Format;
WAC 197-11-435
Cover letter or memo;
WAC 197-11-440
EIS contents;
WAC 197-11-442
Contents of EIS on nonproject proposals;
WAC 197-11-443
EIS contents when prior nonproject EIS;
WAC 197-11-444
Elements of the environment;
WAC 197-11-448
Relationship of EIS to other considerations;
WAC 197-11-450
Cost-benefit analysis;
WAC 197-11-455
Issuance of DEIS;
WAC 197-11-460
Issuance of FEIS.
A. 
Pursuant to WAC 197-11-408(2)(a), all comments on determinations of significance and scoping notices shall be in writing, except where a public meeting on EIS scoping occurs pursuant to WAC 197-11-410(1)(b).
B. 
Pursuant to WAC 197-11-420, 197-11-620, and 197-11-625, the department shall be responsible for preparation and content of EISs and other environmental documents. The department shall contract with consultants as necessary for the preparation of environmental documents. The department may consider the opinion of the applicant regarding the qualifications of the consultant but the department shall retain sole authority for selecting persons or firms to author, co-author, provide special services or otherwise participate in the preparation of required environmental documents.
C. 
Consultants or subconsultants selected by the City to prepare environmental documents for a private development proposal shall not: act as agents for the applicant in preparation or acquisition of associated underlying permits; have a financial interest in the proposal for which the environmental document is being prepared; perform any work or provide any services for the applicant in connection with or related to the proposal.
D. 
The department may establish and maintain one or more lists of qualified consultants who are eligible to receive contracts for preparation of environmental documents. Separate lists may be maintained to reflect specialized qualifications or expertise. When the department requires consultant services to prepare environmental documents, the department shall select a consultant and negotiate a contract for such services.
E. 
All costs of preparing the environment document shall be borne by the applicant.
F. 
In the event an applicant decides to suspend or abandon the project, the applicant must provide formal written notice to the department and consultant. The applicant shall continue to be responsible for all monies expended by the City or consultants to the point of receipt of notification to suspend or abandon, or other obligations or penalties under the terms of any contract let for preparation of the environmental documents.
G. 
The department shall only publish an environmental impact statement (EIS) when it believes that the EIS adequately discloses: the significant direct, indirect, and cumulative adverse impacts of the proposal and its alternatives; mitigation measures proposed and committed to by the applicant, and their effectiveness in significantly mitigating impacts; mitigation measures that could be implemented or required; and unavoidable significant adverse impacts. Unless otherwise agreed to by the applicant, a final environmental impact statement shall be issued by the department within 270 calendar days following the issuance of a DS for the proposal, except for public projects and nonproject actions, unless the department determines at the time of issuance of the DS that a longer time period will be required because of the extraordinary size of the proposal or the scope of the environmental impacts resulting therefrom; provided, that the additional time shall not exceed 90 calendar days unless agreed to by the applicant.
H. 
The following periods shall be excluded from the 270-day time period for issuing a final environmental impact statement:
1. 
Any time period during which the applicant has failed to pay required environmental review fees to the department;
2. 
Any period of time during which the applicant has been requested to provide additional information required for preparation of the environmental impact statement; and
3. 
Any period of time during which the applicant has not authorized the department to proceed with preparation of the environmental impact statement.
(Ord. 11-0329 § 3 (Exh. 1))
This section contains rules for commenting on and responding to environmental documents, including rules for public notices and hearings. The City adopts by reference the following related sections of the WAC:
WAC 197-11-355
Optional DNS process;
WAC 197-11-500
Purpose of this part;
WAC 197-11-502
Inviting comment;
WAC 197-11-504
Availability and cost of environmental documents;
WAC 197-11-508
SEPA register;
WAC 197-11-510
Public notice;
WAC 197-11-535
Public hearings and meetings;
WAC 197-11-545
Effect of no comment;
WAC 197-11-550
Specificity of comments;
WAC 197-11-560
FEIS response to comments;
WAC 197-11-570
Consultant agency costs to assist lead agency.
A. 
A public comment period for a proposed DNS is required pursuant to WAC 197-11-502 when the proposed action involves: (i) another agency with jurisdiction; (ii) demolition of any structure or facility not exempted by WAC 197-11-800(2)(f) or 197-11-880; (iii) issuance of clearing or grading permits not exempted in Part Nine of the SEPA rules; (iv) a DNS under WAC 197-11-350(2), (3) or 197-11-360(4); or (v) a GMA action. For these projects, the optional DNS process may be used to combine the SEPA comment period with the 21-day notice of application comment period, if any, for the underlying permit. If a notice of application is not required for the underlying permit, the 14-day SEPA comment period shall follow issuance of the DNS and shall be concluded prior to the decision on the underlying action.
B. 
Publication of notice in a newspaper of general circulation in the area where the proposal is located also shall be required for all nonproject actions and for all other proposals that are subject to the provisions of this chapter but are not classified as land use decisions in this title.
C. 
The responsible official may require further notice if deemed necessary to provide adequate public notice of a pending action. Failure to require further or alternative notice shall not be a violation of any notice procedure.
(Ord. 11-0329 § 3 (Exh. 1))
The following procedures and standards of the WAC are adopted regarding use of existing environmental documents:
WAC 197-11-600
When to use existing environmental documents;
WAC 197-11-610
Use of NEPA documents;
WAC 197-11-620
Supplemental environmental impact statement – Procedures;
WAC 197-11-625
Addenda procedures;
WAC 197-11-630
Adoption procedures;
WAC 197-11-635
Incorporation by reference procedures;
WAC 197-11-640
Combining documents.
(Ord. 11-0329 § 3 (Exh. 1))
The following procedures and standards of the WAC regarding the timing and content of environmental review are hereby adopted:
WAC 197-11-210
SEPA/GMA integration;
WAC 197-11-228
Overall SEPA/GMA integration procedures;
WAC 197-11-230
Timing of an integrated SEPA/GMA process;
WAC 197-11-232
SEPA/GMA integration procedures for preliminary planning, environmental analysis, and expanded scoping;
WAC 197-11-235
Documents
(Ord. 11-0329 § 3 (Exh. 1))
The following procedures and standards of the WAC are adopted regarding the designation of planned actions:
WAC 197-11-164
Planned actions – Definition and criteria;
WAC 197-11-168
Ordinances or resolutions designating planned actions – Procedures for adoption;
WAC 197-11-172
Planned actions – Project review.
(Ord. 11-0329 § 3 (Exh. 1))
All requests from other agencies that the City consult on threshold investigations, the scope process, EISs or other environmental documents shall be submitted to the department. The department shall be responsible for compiling and transmitting the City’s response to such requests for consultation.
(Ord. 11-0329 § 3 (Exh. 1))
The following procedures and standards of the WAC regarding appeals are hereby adopted:
WAC 197-11-680
Appeals.
A. 
Appeals of threshold determinations or the adequacy of a final EIS are conducted by the hearing examiner pursuant to the provisions of KMC § 19.30.070, subject to the following:
1. 
Only one appeal of each threshold determination shall be allowed on a proposal.
2. 
As provided in RCW 43.21C.075(3)(d), the decision of the responsible official shall be entitled to substantial weight.
3. 
For Type 2 decisions, an administrative SEPA appeal hearing shall be consolidated in all cases with an administrative appeal hearing, if any, on the underlying proposal. For Type 3 and 4 decisions, an administrative SEPA appeal hearing shall be consolidated with the open record hearing on the underlying action.
B. 
An appeal of a threshold determination shall be filed with the City within 14 calendar days of the date the determination is issued by the responsible official, unless a public comment period under WAC 197-11-340(2) is provided or the optional DNS process is used in which case the appeal period is 21 calendar days.
C. 
Notwithstanding the provisions of subsections A and B of this section, the department may adopt procedures under which an administrative appeal shall not be provided if the city manager finds that consideration of an appeal would be likely to cause the department to violate a compliance, enforcement or other specific mandatory order or specific legal obligation. The city manager’s determination shall be included in the notice of the SEPA determination, and the city manager shall provide a written summary upon which the determination is based within five days of receiving a written request. Because there would be no administrative appeal in such situations, review may be sought before a court of competent jurisdiction under RCW 43.21C.075 and applicable regulations, in connection with an appeal of the underlying governmental action.
D. 
There is no administrative appeal of a DNS, MDNS, DS or EIS adequacy associated with a Type 1 decision or a Type 5 or other legislative decision.
(Ord. 11-0329 § 3 (Exh. 1))
The City shall require fees as set forth in KMC Title 20.
(Ord. 11-0329 § 3 (Exh. 1))
The City adopts by reference the following sections of the WAC which contain information on forms:
WAC 197-11-960
Environmental checklist;
WAC 197-11-965
Adoption notice;
WAC 197-11-970
Determination of nonsignificance (DNS);
WAC 197-11-980
Determination of significance and scoping notice (DS);
WAC 197-11-985
Notice of assumption of lead agency status;
WAC 197-11-990
Notice of action.
(Ord. 11-0329 § 3 (Exh. 1))