Chapter 2.60 STATE ENVIRONMENTAL POLICY ACT GUIDELINES

Purpose of This Part and Adoption by Reference. This part contains the basic requirements that apply to the SEPA process. The city adopts the following sections of Chapter 197-11 of the Washington Administrative Code by reference:

WAC 197-11-040	Definitions
WAC 197-11-050	Lead agency
WAC 197-11-055	Timing of the SEPA process
WAC 197-11-060	Content of environmental review
WAC 197-11-070	Limitations on actions during SEPA process
WAC 197-11-080	Incomplete or unavailable information
WAC 197-11-090	Supporting documents
WAC 197-11-100	Information required of applicants
WAC 197-11-158	CMA project review-reliance on existing plans and regulations
WAC 197-11-210	SEPA/GMA integration
WAC 197-11-220	SEPA/GMA definitions
WAC 197-11-228	Overall SEPA/GMA integration procedures
WAC 197-11-230	Timing of an integrated GMA/SEPA process
WAC 197-11-232	SEPA/GMA integration procedures for preliminary planning environmental analysis, and expanded scoping
WAC 197-11-235	Documents
WAC 197-11-238	Monitoring
WAC 197-11-250	SEPA/Model Toxics Control Act integration
WAC 197-11-253	SEPA lead agency for MTCA actions
WAC 197-11-256	Preliminary evaluation
WAC 197-11-259	Determination of nonsignificance for MTCA remedial actions
WAC 197-11-262	Determination of significance and EIS for MTCA remedial actions
WAC 197-11-265	Early scoping for MTCA remedial actions
WAC 197-11-268	MTCA interim actions

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

“Department”

means any division, subdivision or organizational unit of the city established by ordinance, rule or order.

“SEPA rules”

means Chapter 197-11 WAC adopted by the Department of Ecology.

“Ordinance”

means the ordinance, resolution or other procedure used by the city to adopt regulatory requirements.

“Early notice”

means the city’s response to an applicant stating whether it considers issuance of a determination of significance likely for the applicant’s proposal (mitigated determination of nonsignificance (DNS) procedures).

Designations of Responsible Official.

For those proposals for which the city is the lead agency, the responsible official shall be the city building official.

For all proposals for which the city is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the lead agency or responsible official by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020.

The city shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW.

(d)

Lead Agency Determination and Responsibilities.

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

When the city 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.

When the city is not the lead agency for a proposal, all departments of the city shall use and consider, appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No city department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600.

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

(5)

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

(6)

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

(e)

Additional Timing Considerations.

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

§ 2.60.030 Categorical exemptions and threshold determinations.

If the city’s only action on a proposal is a decision on a building permit or other license that requires detailed project plans and specifications, the applicant may request in writing that the city conduct environmental review prior to submission of the detailed plans and specifications.

(Ord. 942 § 2, 1984; Ord. 1380 § 2, 1998; Ord. 1474 § 1, 2002)

Purpose of this Part and Adoption by Reference. This part contains the rules for deciding whether a proposal has a “probably significant, adverse environmental impact” requiring an environmental impact statement (EIS) to be prepared. This part also contains rules for evaluating the impacts of proposals not requiring an EIS. The city adopts the following sections by reference, as supplemented in this section:

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

Flexible Thresholds for Categorical Exemptions.

The city establishes the exempt levels as described in WAC 197-11-800 for minor new construction.

Whenever the city 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).

Use of Exemptions.

Each department within the city 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 city shall not require completion of an environmental checklist for an exempt proposal.

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.

If a proposal includes both exempt and nonexempt actions, the city may authorize exempt actions prior to compliance with the procedural requirements of this section, except that:

The city shall not give authorization for:

(i)

Any nonexempt action;

(ii)

Any action that would have an adverse environmental impact; or

(iii)

Any action that would limit the choice of alternatives.

A department may withhold approval of an exempt action that would lead to modification of the physical environment, when such modification would serve no purpose if nonexempt actions(s) were not approved; and

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.

(d)

Environmental Checklist.

Except as provided in subsection (d)(4) 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 not specifically exempted in this chapter; except, a checklist is not needed if the city and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The city shall use the environmental checklist to determine the lead agency and, if the city is the lead agency, for determining the responsible official and for making the threshold determination.

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

(e)

Mitigated DNS.

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.

An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

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

Precede the city’s actual threshold determination for the proposal.

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

Be written;

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

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.

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

(5)

When an applicant submits a changed or clarified proposal, along with a revised or amended environmental checklist, the city 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 city 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 city shall issue and circulate a DNS under WAC 197-11-340 (2).

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

§ 2.60.040 Environmental impact statement (EIS).

The applicant’s proposed mitigation measures (clarifications, 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.

(D)

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.

(6)

A mitigated DNS is issued under WAC 197-11-340(2)(a), requiring a fourteen-day comment period and public notice.

(7)

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

(8)

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

(9)

The city’s written response under subsection (e)(2) of this section shall not be construed as 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 city to consider the clarifications or changes in its threshold determination.

(Ord. 942 § 3, 1984; Ord. 1380 § 3, 1998)

Purpose of This Part and Adoption by Reference. This part contains the rules for preparing environmental impact statements. The city adopts the following sections by reference, as supplemented by this section:

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 (optional)
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

Preparation of EIS—Additional Considerations.

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

The DEIS and FEIS or draft and final SEIS shall be prepared by city staff, the applicant, or by a consultant selected by the city or the applicant. If the responsible official requires an EIS for a proposal and determines that someone other than the city 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 city’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

The city may require an applicant to provide information the city does not possess, including specific investigations. However, the applicant is not required to supply information that is not required under this chapter or that is being requested from another agency. (This does not apply to information the city may request under another ordinance or statute.)

Additional Elements to be Covered in an EIS. The following additional elements are part of the environment for the purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this chapter:

Economy;

Social policy analysis;

Cost benefit analysis.

(Ord. 942 § 4, 1984; Ord. 1380 § 4, 1998)

§ 2.60.050 Commenting.

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

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 197-11-535	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	Consulted agency costs to assist lead agency

Public Notice.

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

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

If no public notice is required for the permit or approval, the city shall give notice of the DNS or DS by publishing notice in a newspaper of general circulation in the city where the proposal is located;

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

Whenever the city 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:

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

§ 2.60.060 Using existing environmental documents.

Publishing notice in a newspaper of general circulation in the city where the proposal is located.

(Ord. 942 § 5, 1984; Ord. 1380 § 5, 1998)

Purpose of This Part and Adoption by Reference. This part contains rules for using and supplementing existing environmental documents prepared under SEPA or National Environmental Policy Act (NEPA) for the city’s own environmental compliance. The city adopts the following sections by reference:

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
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. 942 § 6, 1984; Ord. 1380 § 6, 1998)

§ 2.60.070 SEPA and agency decisions.

Purpose of this Part and Adoption by Reference. This part contains rules (and policies) for SEPA’s substantive authority, such as decisions to mitigate or reject proposals as a result of SEPA. This part also contains procedures for appealing SEPA determinations to agencies or the courts. The city 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

Substantive Authority.

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

The city may attach conditions to a permit or approval for a proposal so long as:

Such conditions are necessary to mitigate specific probably adverse environmental impacts identified in environmental documents prepared pursuant to this chapter; and

Such conditions are in writing; and

The mitigation measures included in such conditions are reasonable and capable of being accomplished; and

(D)

The city has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and

(E)

Such conditions are based on one or more policies in subsection (d)(4) of this section and cited in the license or other decision document.

The city may deny a permit or approval for a proposal on the basis of SEPA so long as:

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

A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient to mitigate the identified impact; and

The denial is based on one or more policies identified in subsection (b)(4) of this section and identified in writing in the decision document.

The city designates and adopts by reference the following policies as the basis for the city’s exercise of authority pursuant to this section:

The city 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:

(i)

Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(ii)

Assure for all people of Washington safe, healthful, productive and aesthetically and culturally pleasing surroundings;

(iii)

Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

(iv)

Preserve important historic, cultural and natural aspects of our national heritage;

(v)

Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

(vi)

Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and

(vii)

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

The city 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.

The city adopts by reference the following policies: subdivision and zoning ordinances, building codes and comprehensive plan.

Notice/Statute of Limitations.

The city may publish a notice of action pursuant to RCW 43.21C.080 for any action.

The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the city clerk pursuant to RCW 43.21C.080.

(Ord. 942 § 7, 1984; Ord. 1380 § 7, 1998)

§ 2.60.080 Definitions.

Purpose of This Part and Adoption by Reference. This part contains uniform usage and definitions of terms under SEPA. The city adopts the following sections by reference, as supplemented by WAC 173-806-030:

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	Costbenefit 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 of 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.

(Ord. 942 § 8, 1984; Ord. 1380 § 8, 1998)

§ 2.60.090 Categorical exemptions.

Adoption by Reference. The city adopts by reference the following rules for categorical exemptions, as supplemented in this chapter, including WAC 173-806-070 (flexible thresholds), WAC 173-806-080 (use of exemptions), and WAC 173-806-190 (critical areas):

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

(Ord. 942 § 9, 1984; Ord. 1380 § 9, 1998)

§ 2.60.100 Agency compliance.

Purpose of This Part and Adoption by Reference. This part contains rules for agency compliance with SEPA, including rules for charging fees under the SEPA process, 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. The city adopts the following sections by reference:

WAC 197-11-900	Purpose of this part
WAC 197-11-902	Agency SEPA policies
WAC 197-11-916	Application to ongoing actions
WAC 197-11-920	Agencies with environmental expertise
WAC 197-11-922	Lead agency rules
WAC 197-11-924	Determining the 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 city
WAC 197-11-934	Lead agency for private projects requiring licenses from a local agency, not a 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 of 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

Fees. The city shall require the following fees for its activities in accordance with the provision of this chapter:

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

Environmental Impact Statement.

When the city 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 city, the city may charge and collect a reasonable fee from any applicant to cover costs incurred by the city in preparing the EIS. The responsible official shall advise the applicant(s) of the projected costs for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs.

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

If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under (2)(A) or (2)(B) of this subsection which remain after incurred costs are paid.

The city may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this chapter relating to the applicant’s proposal.

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

(5)

The city may charge any persons for copies of any document prepared under this chapter, and for mailing the document, in a manner provided by Chapter 42.17 RCW.

(Ord. 942 § 10, 1984; Ord. 1380 § 10, 1998)

§ 2.60.110 Forms.