Preproposal statement of inquiry was filed as WSR 96-06-018.

Title of Rule: Chapter 173-806 WAC, Model ordinance.

Purpose: These revisions update the model ordinance to reflect recent changes to the SEPA rules.

Statutory Authority for Adoption: RCW 43.21C.130.

Statute Being Implemented: Chapter 43.21C RCW, State Environmental Policy Act.

Summary: Cities and counties are required to adopt their own procedures describing how they will implement the State Environmental Policy Act (SEPA), chapter 43.21C RCW. This rule provides a model ordinance that they can use as a basis for adopting their own procedures. The model only serves as guidance for cities and counties. They can use all, part, or none of it, at their discretion.

Reasons Supporting Proposal: The Department of Ecology is required by statute to develop this model ordinance. Recent changes in the SEPA rules (chapter 197-11 WAC) require updating the model.

Name of Agency Personnel Responsible for Drafting and Implementation: Neil Aaland, Ecology Headquarters, Lacey, (360) 407-7045.

Name of Proponent: Washington Department of Ecology, governmental.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The model ordinance is only guidance. If used, it likely will be a cost savings since a city/county will not have to go to the expense of developing their own procedures.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: SEPA (chapter 43.21C RCW) and the SEPA rules (chapter 197-11 WAC) contain procedures for evaluating the potential environmental impacts of a proposal. Cities and counties are often the lead agency for implementing SEPA, and are required to adopt their own local procedures for implementation. This model ordinance is prepared to provide an example of a local ordinance setting procedure. It can be used as adopted in WAC, or can be modified as appropriate to serve local needs. A city or county can also choose to use its own procedures, and not base it on this model at all. The model ordinance is adopted as an administrative rule because the Department of Ecology is directed to do so by RCW 43.21C.130 and 43.21C.135.

Proposal Changes the Following Existing Rules: The changes to existing chapter 173-806 WAC are made to conform the model ordinance to recent changes in the SEPA rules. Changes include incorporating new sections by reference; revising the appeals section; changing time limits; and changing the references from environmentally sensitive areas to critical areas.

No small business economic impact statement has been prepared under chapter 19.85 RCW. These changes do no impose economic impacts upon small businesses. The changes are voluntary in nature, at the discretion of cities and counties. No new requirements are added to the requirements already in chapter 197-11 WAC (SEPA rules).

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. This rule does not subject a violator to a penalty or sanction; does not establish, alter or revoke a qualification or standard for the issuance, suspension or revocation of a license or permit; and does not make a new or significant amendment to a policy or regulatory program. This rule only provides suggestions to cities and counties on how their own local procedures may be prepared.

Hearing Location: Department of Ecology, Headquarters Building, Room 1S-16, 300 Desmond Drive, Lacey, WA 98503, on Wednesday July 8, 1998, at 10:00 a.m.

Assistance for Persons with Disabilities: Contact Neil Aaland by July 1, 1998, TDD (360) 407-6006, or (360) 407-7045.

Submit Written Comments to: Neil Aaland, Department of Ecology, P.O. Box 7703, Olympia, WA 98504-7703, FAX (360) 407-6904, by Wednesday, July 8, 1998.

Date of Intended Adoption: August 21, 1998.

June 1, 1998

Dan Silver

Deputy Director

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-020  Purpose of this part and adoption by reference. This part contains the basic requirements that apply to the SEPA process. The city/county adopts the following sections of chapter 197-11 of the Washington Administrative Code by reference:

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-020, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-030  Additional definitions. In addition to those definitions contained within WAC 197-11-700 through 197-11-799 and 197-11-220, when used in this ordinance, the following terms shall have the following meanings, unless the context indicates otherwise:

(1) "Department" means any division, subdivision or organizational unit of the city/county established by ordinance, rule, or order.

(2) "SEPA rules" means chapter 197-11 WAC adopted by the department of ecology.

(3) "Ordinance" means the ordinance, resolution, or other procedure used by the city/county to adopt regulatory requirements.

(4) "Early notice" means the city's/county'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).

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-030, filed 6/15/84. Formerly WAC 173-805-030.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-050  Lead agency determination and responsibilities. (1) The department within the city/county 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, 197-11-253, 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.

(2) When the city/county 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.

(3) When the city/county is not the lead agency for a proposal, all departments of the city/county shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No city/county 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. In some cases, the city/county may conduct supplemental environmental review under WAC 197-11-600.

(4) If the city/county or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-253 or 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/county 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/county may be initiated by  . . . . . . .

(5) Departments of the city/county 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 (That is: Which agencies require nonexempt licenses?).

(7) When the city/county is lead agency for a MTCA remedial action, the department of ecology shall be provided an opportunity under WAC 197-11-253(5) to review the environmental documents prior to public notice being provided. If the SEPA and MTCA documents are issued together with one public comment period under WAC 197-11-253(6), the city/county shall decide jointly with ecology who receives the comment letters and how copies of the comment letters will be distributed to the other agency.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-050, filed 6/15/84. Formerly WAC 173-805-070.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-053  Transfer of lead agency status to a state agency. (Optional for cities or towns under 5,000 population and counties ((of fifth through ninth class)) with a population under eighteen thousand.) For any proposal for a private project where the city/county would be the lead agency and for which one or more state agencies have jurisdiction, the city's/county's responsible official may elect to transfer the lead agency duties to a state agency. The state agency with jurisdiction appearing first on the priority listing in WAC 197-11-936 shall be the lead agency and the city/county shall be an agency with jurisdiction. To transfer lead agency duties, the city's/county's responsible official must transmit a notice of the transfer together with any relevant information available on the proposal to the appropriate state agency with jurisdiction. The responsible official of the city/county shall also give notice of the transfer to the private applicant and any other agencies with jurisdiction over the proposal.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-053, filed 6/15/84. Formerly WAC 173-805-053.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-058  Additional timing considerations. (1) For nonexempt proposals, the DNS or (Note: Select either draft or final EIS.) . . . . . . . . EIS for the proposal shall accompany the city's/county's staff recommendation to any appropriate advisory body, such as the planning commission.

(2) (This subsection is for non-GMA jurisdictions only.) If the city's/county'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/county conduct environmental review prior to submission of the detailed plans and specifications. (Note: The following may be added.) The point at which environmental review may be initiated for specific permits or other licenses requiring detailed project plans and specifications is  . . . . . . .

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-058, filed 6/15/84. Formerly chapter 173-805 WAC.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-065  Purpose of this part and adoption by reference. This part contains the rules for deciding whether a proposal has a "probable 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/county adopts the following sections by reference, as supplemented in this part:

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-065, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-090  Environmental checklist. (1) (Use Option 1 or 2, but not both) (Option 1, using checklist from the rules without changes.) Except as provided in subsection (4) of this section, a (this exception is added for jurisdictions wishing to use planned actions) 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 ordinance; except, a checklist is not needed if the city/county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The city/county shall use the environmental checklist to determine the lead agency and, if the city/county is the lead agency, for determining the responsible official and for making the threshold determination.

(Option 2, adding questions to the checklist.) A completed environmental checklist shall be filed at the same time as an application for a permit, license, certificate, or other approval not exempted in this ordinance; except, a checklist is not needed if the city/county and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. Except as provided in subsection (4) of this section, the checklist shall be in the form of WAC 197-11-960 with the following additions: (Indicate city's/county's additions.) . . . . . . . .

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

(3) (Optional.) The city/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: (Either one or both of the following may be included.)

(a) The city/county has technical information on a question or questions that is unavailable to the private applicant; or

(b) The applicant has provided inaccurate information on previous proposals or on proposals currently under consideration.

(4) (This subsection is to be used only by jurisdictions wishing to use planned actions.) For projects submitted as planned actions under WAC 197-11-164, the city/county shall use its existing environmental checklist form or may modify the environmental checklist form as provided in WAC 197-11-315. The modified environmental checklist form may be prepared and adopted along with or as part of a planned action ordinance; or developed after the ordinance is adopted. In either case, a proposed modified environmental checklist form must be sent to the department of ecology to allow at least a thirty-day review prior to use.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-090, filed 6/15/84. Formerly WAC 173-805-090.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-100  Mitigated DNS. (1) 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.

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

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

(b) Precede the city's/county's actual threshold determination for the proposal.

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

(a) Be written;

(b) State whether the city/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 city/county to consider a DS; and

(c) 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.

(4) As much as possible, the city/county 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/county 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:

(a) If the city/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 city/county shall issue and circulate a DNS under WAC 197-11-340(2).

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

(c) 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), requiring a fifteen-day comment period and public notice.)) (Note: GMA counties/cities may use either Option 1 or 2; non-GMA counties/cities must use Option 1.) (Option 1) A mitigated DNS is issued under WAC 197-11-340(2), requiring a fourteen-day comment period and public notice. (Option 2) A mitigated DNS is issued under either WAC 197-11-340(2), requiring a fourteen-day comment period and public notice, or WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.

(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/county.

(8) If the city's/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 city/county should evaluate the threshold determination to assure consistency with WAC 197-11-340 (3)(a) (withdrawal of DNS).

(9) The city's/county's written response under subsection (2) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city/county to consider the clarifications or changes in its threshold determination.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-100, filed 6/15/84. Formerly chapter 173-805 WAC.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-128  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/county adopts the following sections by reference, as supplemented in this part:

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-128, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-130  Public notice. (This section is required for non-GMA cities and counties. Subsections (1) and (2) of this section may be combined.) (1) Whenever . . . . . . city/county issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3) the city/county shall give public notice as follows:

(a) 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.

(b) If no public notice is required for the permit or approval, the city/county shall give notice of the DNS or DS by: (Note: Select at least one of the following)

(i) Posting the property, for site-specific proposals;

(ii) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(iii) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(iv) Notifying the news media;

(v) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(vi) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (either general lists or lists for specific proposals for subject areas);

(vii) (or, specify other method) . . . . . . .

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

(2) Whenever the city/county 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:

(a) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and (Note: In addition select at least one of the following or insert all of the list and require that at least one method be used.)

(b) Posting the property, for site-specific proposals;

(c) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(d) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(e) Notifying the news media;

(f) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(g) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (general lists or specific lists for proposals or subject areas); (and/or

(h) specify other) . . . . . .

(3) Whenever possible, the city/county shall integrate the public notice required under this section with existing notice procedures for the city's/county's nonexempt permit(s) or approval(s) required for the proposal.

(4) The city/county may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-130, filed 6/15/84. Formerly chapter 173-805 WAC.]

NEW SECTION

WAC 173-806-132  Public notice. (This section is required for GMA cities and counties. Subsections (1) and (2) of this section may be combined.) (1) Whenever possible, the city/county shall integrate the public notice required under this section with existing notice procedures for the city's/county's nonexempt permit(s) or approval(s) required for the proposal.

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

(a) 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.

(b) If an environmental document is issued concurrently with the notice of application, the public notice requirements for the notice of application in RCW 36.70B.110(4) will suffice to meet the SEPA public notice requirements in WAC 197-11-510(1).

(c) If no public notice is otherwise required for the permit or approval, the city/county shall give notice of the DNS or DS by: (Note: Select at least one of the following.)

(i) Posting the property, for site-specific proposals;

(ii) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(iii) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(iv) Notifying the news media;

(v) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(vi) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (either general lists or lists for specific proposals for subject areas);

(vii) (or, specify other method) . . . . . . .

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

(3) If a DNS is issued using the optional DNS process, the public notice requirements for a notice of application in RCW 36.70B.110(4) as supplemented by the requirements in WAC 197-11-355 will suffice to meet the SEPA public notice requirements in WAC 197-11-510 (1)(b).

(4) Whenever the city/county 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:

(a) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and (Note: In addition select at least one of the following or insert all of the list and require that at least one method be used.)

(b) Posting the property, for site-specific proposals;

(c) Publishing notice in a newspaper of general circulation in the county, city, or general area where the proposal is located;

(d) Notifying public or private groups which have expressed interest in a certain proposal or in the type of proposal being considered;

(e) Notifying the news media;

(f) Placing notices in appropriate regional, neighborhood, ethnic, or trade journals; and/or

(g) Publishing notice in agency newsletters and/or sending notice to agency mailing lists (general lists or specific lists for proposals or subject areas);

(h) (and/or specify other) . . . . . .

(5) Public notice for projects that qualify as planned actions shall be tied to the underlying permit as specified in WAC 197-11-172(3).

(6) The city/county may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense.

[]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-150  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/county's own environmental compliance. The city/county adopts the following sections by reference:

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-150, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-160  Substantive authority. (1) The policies and goals set forth in this ordinance are supplementary to those in the existing authorization of the city of . . . . . /. . . . . county.

(2) The (city/county) may attach conditions to a permit or approval for a proposal so long as:

(a) Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to this ordinance; and

(b) Such conditions are in writing; and

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

(d) The city/county 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 (4) of this section and cited in the license or other decision document.

(3) The (city/county) may deny a permit or approval for a proposal on the basis of SEPA so long as:

(a) 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 ordinance; and

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

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

(4) The city/county designates and adopts by reference the following policies as the basis for the city's/county's exercise of authority pursuant to this section:

(a) The city/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:

(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.

(b) The city/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.

(c) (Optional.) The city/county adopts by reference the policies in the following city/county (codes, ordinances, resolutions, plans). . . . . . . . . . (List the codes, ordinances, resolutions, or plans you have selected, such as zoning ordinance, building codes or comprehensive plans.). . . . . . . . . . .

(d) (Optional.) The city/county establishes the following additional policies: . . . . . . . . . . .

(((5) (Note: Required by RCW 43.21C.060, unless the city/county council/commission elects to eliminate such appeals and states so in this ordinance.) Except for permits and variances issued pursuant to chapter . . . . . of the city/county code (chapter relating to shoreline management), when any proposal or action not requiring a decision of the city/county council/commission is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the city/county council/commission. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within ten days of the decision being appealed. Review by the city/county council/commission shall be on a de novo basis.))

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-160, filed 6/15/84. Formerly chapter 173-805 WAC.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-170  Appeals. (1) (Agency administrative appeal is optional. If allowed, the statute requires that all of this subsection be included, except (c) of this subsection which is optional.) . . . . . city/county establishes the following administrative appeal procedures under RCW 43.21C.075 and WAC 197-11-680:

(((a) Any agency or person may appeal the city's/county's procedural compliance with chapter 197-11 WAC for issuance of the following: (Note: Select one or more.)

(i) A final DNS: (Note: Choose one of the following options.)

(Option 1) Appeal of the DNS must be made to . . . . . within . . . . . days of the date the DNS is final (see WAC 197-11-390 (2)(a)).

(Option 2) Appeal of the DNS must be made to . . . . . within . . . . . days of the date the DNS is final. Appeal of the substantive determination on the action must be made to . . . . . within . . . . . days of the issuance of the permit or other license.

(Option 3) Appeal of the (city/county must specify DNS, substantive determination on action, or both. If both are allowed, they must be consolidated.) must be made to . . . . . within . . . . . days of the date the permit or other approval is issued.

(ii) A DS: The appeal must be made to . . . . . within . . . . . days of the date the DS is issued.

(iii) An EIS: Appeal of the (city/county must specify FEIS, substantive determination on the action, or both. If both are allowed, they must be consolidated) . . . . . must be made to . . . . . within . . . . . days of the date the permit or other approval is issued.)) (Note: No model ordinance language has been prepared for administrative appeals, as there are many different choices a city or county can make. If you choose to offer administrative appeals, state your procedures here. Special note: If you do not wish to offer one specific type of administrative appeal, that of a nonelected official's decision conditioning or denying a proposal, RCW 43.21C.060 requires you to clearly state that you are eliminating that type of appeal.)

(b) For any appeal under this subsection, the city/county shall provide for a record that shall consist of the following:

(i) Findings and conclusions;

(ii) Testimony under oath; and

(iii) A taped or written transcript.

(c) (Optional.) The city/county may require the appellant to provide an electronic transcript.

(d) The procedural determination by the city's/county's responsible official shall carry substantial weight in any appeal proceeding.

(2) The city/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. (The following is optional.) The following permits or approvals require official notice: . . . . .

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-170, filed 6/15/84. Formerly chapter 173-805 WAC.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-175  Purpose of this part and adoption by reference. This part contains uniform usage and definitions of terms under SEPA. The city/county adopts the following sections by reference, as supplemented by WAC ((173-806-040)) 173-806-030:

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-175, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-180  Adoption by reference. The city/county adopts by reference the following rules for categorical exemptions, as supplemented in this ordinance, including WAC 173-806-070 (Flexible thresholds), WAC 173-806-080 (Use of exemptions), and WAC 173-806-190 (((Environmentally sensitive)) Critical areas):

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-180, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-185  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 ((environmentally sensitive)) 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/county adopts the following sections by reference((, as supplemented by WAC 173-806-045 through 173-806-043 and this part)):

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-185, filed 6/15/84. Formerly WAC 173-805-020.]

AMENDATORY SECTION (Amending Order DE 84-25, filed 6/15/84)

WAC 173-806-190  ((Environmentally sensitive)) Critical areas. (((Optional. If used, all subsections must be included.) (1) (Use Option 1 or 2, but not both.)

(Option 1: If maps have been prepared.) The map(s) filed under . . . . . designate the location of environmentally sensitive areas within the city/county and are adopted by reference. For each environmentally sensitive area, the exemptions within WAC 197-11-800 that are inapplicable for that area are: . . . . . Unidentified exemptions shall continue to apply within environmentally sensitive areas of the city/county.

(Option 2: If environmentally sensitive areas have not been designated.) shall designate environmentally sensitive areas under the standards of WAC 197-11-908 and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with . . . . . and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing.

(2) The city/county shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this ordinance, making a threshold determination for all such proposals. The city/county shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area.

(3) Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped.)) (Optional.) (1) The city/county has selected certain categorical exemptions that will not apply in one or more critical areas identified in the critical areas ordinances required under RCW 36.70A.060. For each critical area listed below, the exemptions within WAC 197-11-800 that are inapplicable for that area are:

(a) . . . .(list each critical area and exemptions that do not apply within that critical area; exemptions that do not apply can be chosen from the list in WAC 197-11-908). . . .

(b) . . . .

(2) The scope of environmental review of actions within these areas shall be limited to:

(a) Documenting whether the proposal is consistent with the requirements of the critical areas ordinance; and

(b) Evaluating potentially significant impacts on the critical area resources not adequately addressed by GMA planning documents and development regulations, if any, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and with other applicable environmental review laws.

(3) All categorical exemptions not listed in subsection (1) of this section apply whether or not the proposal will be located in a critical area.

[Statutory Authority: RCW 43.21C.130. 84-13-036 (Order DE 84-25), § 173-806-190, filed 6/15/84. Formerly WAC 173-805-050.]

REPEALER

The following section of the Washington Administrative Code is repealed:

WAC 173-806-055 Additional considerations in time limits applicable to the SEPA process.