HomeMy WebLinkAboutord1998-048WHATCOM COUNtY COUNCIL AGENDA BILL NO. 98 -253
CLEARANCES
Initial
Date .
Date Received in Council Office
Agenda Date
Assigned to:
iginator: John Guenther
0 �
JUN 2 41996,
WHATCOM COUNTY
COUNCIL
6/30/98
Introduction
Division Head. Roland Middleton
6
7/14/98
P &D /Council
Dept Head: Michael Knapp
Prosecutor: Karen Frakes
PurchasingBudget: Not Applicable
Executive: Pete Kremen
"O�J
SUBJECT.
Proposed amendments to the Whatcom County SEPA Ordinance 16.08.
ATTACIIMENTS.
1) Proposed Ordinance, 2) Staff Report, 3) Exhibit A - Proposed Amendments to the Whatcom County SEPA
Ordinance, and 4) amendments to the State of Washington SEPA Rules (WAC 197 -11).
Related County Contract #:
Should Clerk schedule a (rearing. NO /X/ YES / / Requested Date:
SUMIVIARYSTATEMENT.
lie State of Washington SEPA Rules (WAC 197 -11), have been
amended and the amendments became effective on November 10,
1997. These amendments were required by the passage of ESHB
1724 in 1995, with additional changes required by ESHB 6094 in
1997. Under SEPA, local governments have 180 -days to amend
their SEPA rules to be consistant with the state's rule revisions.
The deadline for local governments to amend their SEPA Rules in
response to the state's revisions was May 9, 1998..
Distribution Request
Indicate those who should receive a copy after Council action
List specific names to the right
ADS Facilities Management
ADS Finance
ADS Human Resources
ADS Info Services
Assessor
Auditor
Coopera[ive Extension
District Court
Executive
Health
Hearing Examiner
Jail
Juvenile
Parks
Planning
COUNCIL ACTION TA KEN.-
1998 - 253 6/30/98: Introduced
7/14/98: Amended & adopted 7 - 0, Ord. #98 -048
Prosecutor
Public Works
Sheriff
Superior Court
Treasurer
Other
Ordinance or Resolution Number
(this item): Ur . * 91'_O'K
i
• ._.ininglrezonelablljorm.abl
1 SPONSORED BY: Consent
2 PROPOSED BY: Consent
3 INTRODUCTION DATE: 6/30/98
4 ORDINANCE NO.. 98 -048
5 AN ORDINANCE AMENDING THE OFFICIAL WHATCOM COUNTY CODE, TITLE 16,
6 CHAPTER 16.08 (SEPA ORDINANCE), AS REQUIRED BY THE NOVEMBER 10, 1997
7 AMENDMENTS TO THE STATE OF WASHINGTON DEPARTMENT OF ECOLOGY SEPA
8 RULES.
9
10 WHEREAS, based on regulatory reform legislation (ESHB 1724 in 1995 and ESHB 6097
11 in 1997), the State of Washington Department of Ecology (Ecology), SEPA Rules (WAC 197 -11),
12 were amended and the amendments became effective on November 10, 1997; and
13
14 WHEREAS, Whatcom County Planning and Land Use Division staff amended
15 Whatcom County Code, Title 16, Chapter 16.08 (SEPA Ordinance), to comply with the
16 November 10, 1997 Ecology amendments; and
17
18 WHEREAS, a meeting of the Whatcom County Environmental Review Committee (ERC),
19 was held on April 16, 1998 for the purpose of reviewing the proposed county SEPA rule
20 amendments; and
21
22 WHEREAS, the proposed county SEPA rule amendments are supported by the ERC ;
23 and
24
25 WHEREAS, SEPA Determination of Non - Significance SEP98 -00065 was issued for the
26 proposed amendments to the county SEPA rules on May 5, 1998; and
27
28 WHEREAS, the SEPA Determination of Non - Significance legal notice was published in
29 the Bellingham Herald on Wednesday, May 13, 1998; and
30
31 WHEREAS, the Council held a public meeting on June 16, 1998 to consider this matter
32 and approved the ERC's recommendation; and
33
34 WHEREAS, the Council found the amendments in the best interest of the public health,
35 safety, and welfare; and
36
37 WHEREAS, the Council has adopted the following Findings and Conclusions:
38
39 FINDINGS
40
41 1) The November 10, 1997 Ecology SEPA Rule amendments were required by the passage of
42 ESHB 1724 in 1995, with additional changes required by ESHB 6094 in 1997.
43
44 2) These amendments to Whatcom County Code, Title 16, Chapter 16.08 reflect the November
45 10, 1997 Ecology SEPA Rule revisions.
46
Page 1
1 3) The revised Ecology SEPA Rules address the following four main areas;
2 a) Combining the requirements for project application review and SEPA review into one
3 integrated review process;
4 b) administrative SEPA appeals;
5 c) planning actions; and
6 d) categorical SEPA exemptions.
7
8 4) The revised county SEPA rules will not result in any significant difference in the way SEPA
9 regulations are administered by county staff.
10
11 CONCLUSIONS
12
13 The proposed amendments to the Whatcom County SEPA Ordinance are required by the State
14 of Washington following passage of ESHB 1724 and 6094 in 1995 and 1997, respectively, and
15 the subsequent amendments to the State of Washington SEPA Rules. The adoption of this
16 ordinance will result. in the Whatcom County SEPA Ordinance being in compliance with the•State
17 of Washington SEPA Rules.
18
19 NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
20
21 Whatcom County Code, Title 16, Section 16.08, is hereby amended to reflect the November 10,
22 1997 amendments to the Washington State SEPA Rules as presented in Exhibit "A" (Proposed
23 Revisions to the Whatcom County SEPA Ordinance Chapter 16.08).
24
25
26
27 ADOPTED this 14 day of July , 1998
28
29
30 ATTEST:
31
32 ,
33
3
3 rown- vis, o the Council
36
37
38
39 APPR ED as to form:
40
41
42
43 aren Frakes, Civil Deputy Prosecutor
44
45
46
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
Page 2
vlae
Ro ert Imhof, Chairpers
Ap () Denied
Pete Kremen, Executive
EXHIBIT A
Proposed Revisions to the Whatcom County SEPA Ordinance
Chapter 16.08
STATE ENVIRONMENTAL POLICY ACT (SEPA)
Sections:
ARTICLE I. AUTHORITY
16.08.010 Authority.
ARTICLE II. GENERAL REQUIREMENTS
16.08.020 Purpose of this article and adoption by reference.
16.08.939 rd.aitienal defiinitiens.
16.08.040 Designation of responsible official.
16.08.045 Designation of environmental review committee.
16.08.050 Lead agency determination and.responsibiliti.es.
16.08.055-Additional considerations in time limits applicable
to the SEPA process.
16.08.058 Additional timing considerations.
ARTICLE .III. CATEGORICAL EXEMPTIONS AND THRESHOLD DETERMINATIONS
16.08.065 Purpose of-this article and adoption by reference.
16.08.070 Flexible thresholds for categorical exemptions.
16.08.080 Use of exemptions.
16.08.090 Environmental checklist.
16.08.100 Mitigated determination of nonsignificance (DNS).
ARTICLE IV. ENVIRONMENTAL IMPACT STATEMENT (EIS)
16.08.110 Purpose of this article and adoption by reference.
16.08.120 Preparation of EIS - Additional considerations.
ARTICLE V. COMMENTING
16.08.128 Adoption by reference.
16.08.130 Public notice.
16.08.140 Designation of official to perform consulted agency
responsibilities for the county.
ARTICLE VI. USING EXISTING ENVIRONMENTAL DOCUMENTS
16.08.150 Purpose of this article and adoption by reference.
ARTICLE VII. SEPA AND AGENCY DECISIONS
16.08.155 Purpose of this article and adoption by reference.
16 .08.160 Substantive authority.
'.:f ".i ' +:" ".:: :::•ii:: "' };; is -0ii:':J: :: ii::Ji!?i" : ii: i} i:: •:' :.::;:�iii:.::,:!<.:i:'W:: :: iiii:'. ii: 4iii:. i} isvi: ii• i:' i• i::: i::• iY :.iiiii:i.iYi:iiiii::.: ?i ":6: 4ii }i }i };';.i }: ii ......... ..........:......
: >? :: <: < ...... ::. : ::€ : <::ad >n tr:.t.... ....d c� € ....ba .... s .... PA...
16.08.170 Appeals.
16.08.173 Notice /statute of limitations.
ARTICLE VIII. DEFINITIONS
16.08.175 Purpose of this article and adoption by reference.
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ARTICLE IX. CATEGORICAL EXEMPTIONS
16.08.180 Adoption by reference.
ARTICLE IX. AGENCY COMPLIANCE
16.08.185 Purpose of this article and adoption by reference.
16.08.1 90 cam,- y re ei3 � sensitive -- - -- _
16.08.200 Fees.
16.08.205 Effective date.
16.08.220 Severability.
ARTICLE X-1. FORMS
16.08.230 Adoption by reference.
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Article I. Authority
16.08.010 Authority.
Whatcom'County adopts this chapter under the State Environmental
Policy Act (SEPA), RCW 43.21C.120, and the Washington
Administrative Code (WAC) , SEPA rules, WAC 197 -11 -904 €;xri.
This chapter contains the Whatcom County SEPA procedures and
policies. The SEPA rules (WAC Chapter 197 -11), must be used in
conjunction with this chapter. (Ord. 84 -122 Part 1).
-3-
Article II. General Requirements
16.08.020 Purpose of this article and adoption by reference.
This article contains the basic requirements that apply to the SEPA
process. The county adopts the following sections of Chapter 197 -11
of the WAC by reference:
WATOO
197 -11 -050 Lead agency.
197 -11 -055 Timing of the SEPA process.
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.
16.08.030 Additional deft- iil.trairs
(this section moved to 16.08.175)
16.08.040 Designation of responsible official.
A. For those proposals for which the county is the lead
agency, the responsible official shall be the director of <azag
>Et' - [or > =viC` ' 1-r or his /her designee. :.
...
:::::::::......:.: :::......... .
......
B. For all proposals for which the county 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 WAG 173- 806 -020
XXX
icar
C. The county shall retain all documents required by the SEPA
-4-
rules (WAC Chapter. 197-11) and make them available in accordance
with RCW Chapter 42,17.
D. The responsible official shall preside at meetings of the
environmental review committee i and maintain the county
register of environmental consultants. - ......... (Ord. 84-122 Part 2 (part)).
16.08.045 Designation of environmental review committee.
...........
A. There is created an envir-enzftental review eeFaFaittee W
composed of the following public officials or their designated
representative: director of public works, eeunty director
direeter ef
. . .... .. .... t, "Og h
of planning :h :0
R: d
..... .........
.... ................... .. .... ..... .
.......................... . ... ......... .. . .....
director of county parks
environmental health . a"'n" A.' . x.. , zE
blh
and prosecuting attorney.
...............................
B. The committee shall have the responsibility to assist the
responsible official, when consulted, in making threshold
determinations, determining the scope of envirefffa ntal impaet
statemen#R selecting consultants, preparing envirenmental
ifapaet.statemen+-S ..S.:, and similar functions-as requested.
C. The committee shall also recommend to the county council
amendments to this chapter when found necessary to adjust the fees,
make corrections, or make additions in order to be current with WAC
197-11.
B. The eeffffftittee shall alse periedieally review and prepese
revisiens in the elesignatien of envirenmentally eensitive areas.
VE. The committee shall adopt such procedures as it deems
necessary to carry out its functions and responsibilities.
M-F. Matters to be considered by it-ff-`& ERC may be initiated by
...........
.... ...........
any of its members or by.any county department. (Ord. 84-122 Part 2
(part)) .
16.08.050 Lead agency determination and responsibilities.
A. The county, when 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 depaictfae #W#0 is aware that another
department or agency is in the process of determining the lead
agency.
B. When the county is the lead agency for a proposal, the
responsible official shall supervise compliance with the threshold
determination requirements, and if an . EIS is necessary, shall
supervise preparation of the EIS.
C. When the county is not the lead agency for a proposal,
and
................................
.............. .......
d
...... ......... ....
nt -prox-h-liz. all departments of the county shall use n
consider .-V
, as appropriate, either the EVS 1:b. or
the final EIS of the lead agency in making R" decision on the
proposal. No county department shall prepare or require preparation
............... . . .... i ...... X.... -
of a . .... A. E.
S., EVS or EIS in addition to that
r
............ .........
... . .. .. ... ......
prepared ared by the lead agency, unless required under WAC 197-11-600.
In some cases, the county may conduct supplemental environmental
review under WAC 197-11-600.
D. If the county or any of ifs ' departments receives a lead
agency determination made by another agency that appears
-5-
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 15 days of receipt of the determination, or the
county must petition the Department of Ecology for a lead agency
determination under WAC 197 -11 -946 within the 15 day time period.
Any such petition on behalf of the county may be initiated by the
responsible official.
E. The responsible official is 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.
F. Any lead agency determination for a private project shall
include sufficient information from the applicant to identify which
other agencies have jurisdiction over . the proposal
......:::::. ....
..............
;::.:`v'' .'i fE '3 . e± - - - e t��'e- 3632-3
............ ................:...........:.P .:...:...................
......_ ............... .
neerse�? (Ord. 84 -122 Part 2 (part)) .
16.08.055 Additional considerations in time limits applicable to
the SEPA process.
The following time limits (expressed calendar days) shall apply
when the county processes licenses for all private projects and
those governmental proposals submitted to the county by other
agencies:
A. Categorical Exemptions. The county shall identify whether
an action is categorically exempt within seven days of receiving a
completed application.
B. Threshold Determinations.
1. The county shall complete threshold determinations
that can be based-solely upon review of the environmental checklist
for the proposal within 45 days of the date of a determination of
completeness.
2. When the responsible official requires further
information from the applicant or consultation with other agencies
with jurisdiction= j �^
in €e1matieT within v. l 5 days efreeei ing an adequate ap l _ }_e__ av 7
eel1-eted encirefffaental eheeeklis-tk
bb. The eeldnty shall wait ne lenger than 30 days -f
,a eeeenssiaiteei agency tems ;
!P�:�iiiiiii�iilhe responsible official <: <:: " >' :«? ...... ....
:::::::.::e.;: > >;:a:.>:..: e:. >:«:;.::::«<::e::: d::::::.: <:;: should complete
.. �a....nd
.... ..............................c ....................................... ............................... P
the threshold determination within 15 days of receiving the
requested information from the applicant or the consulted agency.
3. When t-he— eeunty faust initiate --- further. t d; es,
inelidd-ing field- investrg-atieme ebta- n - tyre— infer�ti-en te- Faake
the -- trel- d-- deterffiinat=e the - eeunty sheuld -camp fete -tk the
within thiLrty days —ef - receiving- an adequate- epplieatien and--a
eerapleted -eh eeklis t
4. The eeunty shall eeRiplete thresheld determ3na-tiens- -en
'aeti'ens where the applim G" Q1l t'ee^CL„IQ'TZ'n writing that be
-6-
prepared, bec-aese -ems -the prebable- signifieant advei=s^ envirenmental
impaet (8) desei=ibed in the applieatien, within 115 days of reeeiving,
arm- adegidate- applie-atieand eempleted ehee-kli-st.
4A. When applieable —te Ghap er 2.33 WGG, t he county
shall issue its threshold determination at least 15 days prior to
t-h-e open record hearing. (Ord. 96 -031 2; Ord. 92 -33 l; Ord.
84 -122 Part 2 (part)).
16.08.058 Additional timing considerations.
A. For nonexempt proposals, the ? es :a� �d' z Q � or
P P P � ..
draft EIS for the proposal shall accompany the county's staff
recommendation to any appropriate advisory body, such as the
planning commission.
B. If the county's only action on a proposal is a deci$ on on
a building permit or other license that requires detailed project
plans and specifications, the applicant may request in writing that
the county conduct environmental review prior to submission of the
detailed plans and specifications. (Ord. 84 -122 Part 2 (part)).
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Article III. Categorical Exemptions and Threshold Determinations
16.08.065 Purpose of this article and adoption by reference.
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.
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.
` <o'::................................. . ....... .........
197- 11.- .3661beterm1nation of significance (DS) /initiation of
scoping.
197- 11- 390Effect of threshold determination.
16.08.070 Flex »- tThresholds for categorical exemptions.
............ .
A. Whatcom County establishes the following ... �?
exempt levels for >:: °<Q: >:::e:c:::: >:: <:::re.: x:.<:»: : > <:QUx::::;:::: >::: >.::ztt::s:
ticuetie under WAC 197-11-800(1) (b) I in the-s- m eas e the
ee ear- fleedplairzthe Lake :hatEam
shere3ine- iftanagefaent pregraifts and eritie-al aquifer reeharg - areas.
Mape de ieting these -are s shall be available - to -the piabl ie at
effiE•e e€ -the- bureau ef bii1dings and eede.administratiene
197 -i1 _800 "1) (b) (i)� :ap —te €eur dwelling nit
2. Fer agrieultural. street streetdres in WAG
• / feet;
3. Fee effiee, sehee , e= itrncreiai reei=eatie'�zTal,�Cyr��:ccc
square f to -2 0 -parking spaeee;
4. Fer the eeitstricietien ef a parking let in WAG
up te 20 parking ;
r- v= landfill ereif -Eu;u`Fkt�-eirs-j n Wrzc
B. in these areas e f the -eeit net descabcoin
subsctre„ A, Whateem Geunty --establishes the — €e lle a i n
levels fer Fainer new eenstrdetien uneler WAG 19q-11-800(1) (-e) ate
1. For residential dwelling units in WAC
197- 11- 800(1)(c)(i).: up to -2-8 A. 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
C. 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.. 92 -33 2; Ord. 84 -122 Part 3 (part)) .
16.08.080 Use of exemptions.
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)).
16.08.090 Environmental checklist.
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A.
A 4 E << ra: >:: 11b 3....... t�3 ....... 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
county and applicant agree an EIS is required, SEPA compliance has
been completed, or SEPA compliance has been initiated by another
agency. 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.
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.
(Ord. 84 -122 Part 3 (part)).
16.08.100 Mitigated DNS.
A. As provided in this section and in WAC 1.97- 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.
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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
m-itig ate ��S � may be incorporated in the � l-'-d
:. : ......:..:..:, ..::.,..:::...:::.: .. ... - .............
.d: e �z �ozf PN-S by reference to agency staff reports, studies or
other documents.
F. A Eftitigated kDNS is issued under s7 WAC 197 -11- 340 (2) ,
requiring a 14 -dava comment period and public not ice<<.....
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 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)).
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Article IV. Environmental Impact Statement (EIS)
16.08.110 Purpose of this article and adoption by reference.
This article contains the rules for preparing environmental impact
statements. The county adopts the following sections by reference,
as supplemented by this article:
WAC
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. (Optional). _
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. 84 -122
Part 4 (part)).
16.08.120 Preparation of EIS - Additional considerations.
A. Preparation of draft and final EISs (DEIS and FEIS) and
draft and final supplemental EISs (SEIS) is the responsibility of
planning and development services public- -�:rks under the direction
of the responsible official. Before the county 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 county staff, the applicant, or by a consultant selected
consistent with 16.08.200B.2. If the responsible official requires
an EIS for a proposal and determines that someone other than the
county 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 county's procedure for EIS preparation, including
approval of the DEIS and FEIS prior to distribution.
C. The county may require an applicant to provide information
the county 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 county may
request under another ordinance or statute. (Ord. 84 -122 Part 4
(part)).
D. The SEPA responsible official shall administer and have
signatory authority for all EIS bank accounts.
-- 12 —
Article V. Commenting
16.08.128 Adoption by reference.
This article contains rules for consulting, commenting, and
responding on all environmental documents under SEPA, including
rules for public notice and hearings. The county adopts the
following sections by reference, as supplemented in this part:
WAC
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 -535 Public hearings and meetings.
197 -11 -545 Effect of no comment.
197 -11 -550 Specificity_of comments. „
197 -11 -560 FEIS response to comment.
197 -11 -570 Consulted agency costs to assist lead agency.
.(Ord. 84 -122 Part 5 (part)).
16.08.130 Public notice.
A.
€zpa;';;€ Whenever Whatcom County issues a DNS under WAC
............
197 -11- 340(2) or a DS under WAC 197 -11- 360(3) the county shall give
a public notice as follows:
1. if the - dblre netree- -ice required €e
lieense, the netiee shall state whether a DS er DDIS has been issi
2. If no public notice is required for the permit or
approval, the county shall give notice of the DNS or DS by:
a. Posting the property, for site- specific
proposals; or
b. Publishing notice in a newspaper of general
circulation in the county, city, or general area where the proposal
is located; or
c. Notifying public or private groups which have
expressed interest in a certain proposal or in the type of proposal
being considered; or
d. Notifying the news media.
3. Whenever the county issues a DS under WAC
197 -11- 360(3), the county shall state the scoping procedure for the
proposal in the DS as required in WAC 197 -11 -408 and in the public
notice.
enever the county.issues a DEIS under WAC 197 -11- 455(5).
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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 license; and
2. Posting the property, for site - specific proposals; or
3. Publishing notice in a newspaper of general
circulation in the county, city, or.general area where the proposal
is located; or
4.. Notifying public or private groups which have
expressed interest in a certain proposal or in the type of proposal
being considered; or
5. Notifying the news media.
ED. The county may integrate the public notice required under
this section with existing notice procedures for the co-unty's
nonexempt permit(s) or approval(s) required for the proposal:
E. The county may require an applicant to complete the public
notice requirements for the applicant's proposal at his or her
expense. (Ord. 84 -122 Part 5 (part)).
16.08.140 Designation of official to perform consulted agency
responsibilities for the county.
A T he to r 0 director f '
Werks f 83hed shall be responsible for preparation of
........ P P P
written comments for the county in response to a consultation
request prior to a threshold determination, participation in
scoping, and reviewing a DEIS.
B. This person shall be responsible for the county's
compliance with WAC 197 -11 -550 whenever the county 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 county. (Ord. 84 -122 Part 5 (part)).
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Article VI. Using Existing Environmental Documents
16.08.150 Purpose of this article and adoption by reference.
This article contains rules for using and supplementing existing
environmental documents prepared under SEPA or National
Environmental Policy Act (NEPA) for the county's own environmental
compliance. The county adopts the following sections by reference:
WAC
197 -11 -600 When to use existing environmental.documents..._
197 -11 -610 Use of NEPA documents.
197-11 -620 Supplemental environmental impact statement - M
Procedures.
197 -11 -625 Addenda - Procedures.
197 -11 -630 Adoption - Procedures.
197 -11 -635 Incorporation by reference - Procedures;
197 -11 -640 Combining documents.
Ord. 84 -122 Part 6).
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Article VII. SEPA and Agency Decisions
16.08.155 .Purpose of this article and adoption by reference.
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. T.he county adopts
the following sections by reference:
WAC
197 -11 -650 Purpose of this part.
197 -11 -655 Implementation.
197 -11 -660 Substantive authority and mitigation.
197 -11 -680 Appeals.
(Ord. 84 -122 Part 7 (part)).
16.08.160 Substantive authority.
A. The polices 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 in
subsection D 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
identified in subsection D 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:
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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
?6?1 a [ 3 Teffipeica ..... � a
All official land use controls adopted by Whatcom County.
E. - EmEel €ei= perraits and varianeee issueel pui=suant to -the
aetien net req idiring a— decosien ef the -ee — eeiine; , is
eenditiened er denied en the - asis of SEPA by a __eneleete'
e€fie- i-al,the deeis-ienshall be appealable -t -e- the -eeidnty -
Sidchappeal may be per€eeted by the prepenent er any aggrieved-
party by giving netiee te- the responsible effieial within 18 -d-aya
Afthe .gee; s; en being appealed Review by - the - eel= eeune; , sh,, ,
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16.08.170 Appeals.
A. Whatcom County establishes the following administrative
appeal procedures under RCW 43.21C.075 and WAC 197 -11 -680:
1. Any agency or er r persen may appeal the
county's procedural compliance with WAC Chapter 197 -11 for issuance
of the following by filing with the
..::..:::.... .::..:..:. .....:...:..........:......:...
?W (see Section 16.08.200A.2 for fee)
.............................
.............................
a. A finEVB. 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. ADS =e —a ppeal3 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)).
16.08.173 Notice /statute of limitations.
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)).
Article VIII. Definitions
16.08.175 Purpose of this article and adoption by reference.
This article contains uniform usage and definitions of terms under
SEPA. The county adopts the following sections by reference, as
supplemented by WAC 173 - 806 -040:
WAC
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.
W.
197 -11 -722
Consolidated appeal.
197 -11 -724
Consulted agency.
197 -11 -726
Cost- benefit analysis.
197 -11 -72.8
County /city.
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.
, ,
197-7 11 748
197 -11 -750
Envireniftent y sensitive r
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.
.....;::::<::
;: >;::::< 7p:U, -:;ham : :�:n:.
197 -11 -776
Phased review.
197 -11 -778
Preparation.
197 -11 -780
Private project.
197 -11 -782
Probable.
197 -11 -784
Proposal.
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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. 84 -122 Part 8).
In addition to those definitions contained within WAC 197 -11 -700
through 197 -11 -799, when used in this article, the following terms
shall have the following meanings, unless the context indicates
otherwise:
erg-anizatren, , ; t of the —e -ished by ereiinanee, r—
e E e_r .
�!. "Early notice" means the.county-'s response to an applicant
stating whether it considers issuance of a determination of
significance (DS) likely for the applicant's proposal (mitigated
determination of nonsignificance (MDNS) procedures):
"ERC" means environmental review committee established in
Section 16.08.045.
D "Ordinance" means the er-elinanee, reselutien, er ether
procedure used by the county to adopt regulatory requirements.
HIV. "Responsible official shall mean the director of the
department which bears responsibilities for the SEPA process or
his /her designee.
"SEPA rules" means WAC Chapter 197 -11 adopted by the
Department of Ecology. (Ord. 95 -032; Ord. 84 -122 Part 2 (part)).
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WAG
19; -11 80O Gateger-c-e-lexe ens.
-197-11 --880 Emer-gene, es
197-11 QQnppi--jtjen4nEj vee egy to ehange t
1z�zLP a +- g}—
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Axe
WAG
19; -11 80O Gateger-c-e-lexe ens.
-197-11 --880 Emer-gene, es
197-11 QQnppi--jtjen4nEj vee egy to ehange t
1z�zLP a +- g}—
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Article XIX. Agency Compliance
16.08.185 Purpose of this article and adoption by reference.
This article contains rules for agency compliance with SEPA,
including rules for charging fees under the SEPA process,
designating =,� e,y 2:.' >4 :i:::':<':::.'.'�f' . '>: 7%n:: >' #::
.:.. . a r e as � listing g agencies with � :::::::::::::�::::.; ::�:: :::: ; �;. ; :::;;; :>
environmental expertise,
selecting the lead agency, and applying
these rules to current agency activities. The county adopts the
following sections by reference, as supplemented by Section
16.08.050:
WAC
197- 11 -900P 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
197 -11 -928 Lead
197 -11 -930 Lead
with
197 -11 -932 Lead
from
is a
197 -11 -934 Lead
from
more
agency for governmental proposals.
agency for public and private proposals.
agency for private projects with one agency
jurisdiction.
agency for private projects requiring licenses
more than one agency, when one of the agencies
county /city.
agency for private projects requiring licenses
a local agency, not a county /city, and one or
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 Ecology resolution of lead agency disputes.
197 -11 -948 Assumption of lead agency status.
(Ord. 84 -12.2 Part 10 (part)).
WLZ
— Milli —
— — —
i1�� _ w :...���sGa���.w�.��iia..
��:�0.
WLZ
'M MEN-
.... ......... .::.:.....:..::.; ::A...::::.:::.:,.:.::::.:.:..:.:.:::.:.::.;. .::..::.:::::. :.:..............
XO
,,
>ner <:a on::::tra::::: >:<:.:: <`; ::: >:..< ;.— ethe The im
periods provided by this chapter for making a threshold
determination shall not begin to run until payment of the fee.
(When the county completes the environmental checklist at the
applicant's request or under Section 16.08.090 C, an additional
n n , i, , .......
.:<cQarce w;t_h_C X35. shall be collected. )
... ...............................
e ;O S for appeals under Section
16.08.170. The fee shall not apply to county departments.
B. Environmental Impact Statement.
?�. When the county 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 county, the county may
charge and collect reasonable fee from any applicant to cover costs
incurred by the county in preparing the EIS. The responsible
official shall advise the applicant 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
county 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 county and may bill such costs and
expenses directly to the applicant. The county may require the
applicant to post bond or otherwise ensure payment of such costs.
Such consultants shall be selected by mutual agreement of the
county and applicant; provided, if agreement cannot be reached the
applicant shall select a consultant from a list of no less than
three qualified consultants supplied by the county.
?- -3. If a -proposal is modified so that an EIS is no
longer required, the responsible official shall refund any fees
-23=
collected under paragraphs 1 and 2 of this subsection B .which
remain after incurred costs are paid.
C. The county 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.
D. The county shall not collect a fee for performing its
duties as a consulted agency:
E. The county may charge any person for copies of any document
prepared under this chapter, and for mailing the document, in a
manner provided by RCW Chapter 42.17. (Ord. 93 -080 Exh. T; Ord.
84 -122 Part 10 (part)).
16.08.205 Effective date.
The effective date of this chapter is October 1, 1984. (Ord..-.84-122
Part 10 (part)). }
16.08.220 Severability.
If any provision of this chapter, or its application to any person
or circumstances is held invalid, the remainder of this chapter, or
the application of the provision to other person or circumstances,
shall not be affected. (.Ord. 84 -122 Part 10 (part)).
OPME
Article X1. Forms
16.08.230 Adoption by reference.
The county adopts the following forms and sections by reference:
WAC
197- 11- 9605EPA Environmental checklist.
197 -11 -965 Adoption notice.
197 -11 -970 Determination of nonsignificance.
197 -11 -980 Determination of significance and scoping notice.
197 -11 -985 Notice of assumption of lead agency status.
197 -11 -990 Notice of action.
(Ord.. 84 -122 Part 11).
_Code Publishing, Inc. (Rev. 3 /97)(DRAFT 3 /98 -j•hg)
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