PROPOSED RULES
FISH AND WILDLIFE
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-02-076.
Title of Rule: Merging WDFW SEPA rules, chapter 232-19 WAC into chapter 220-100 WAC.
Purpose: The proposed rule making is to merge former Department of Wildlife's SEPA rules (chapter 232-19 WAC) and former Department of Fisheries' SEPA rules (chapter 220-100 WAC) into those for the Washington Department of Fish and Wildlife (chapter 220-100 WAC), and repeals chapter 232-19 WAC.
Other Identifying Information: The two sets of WACs are implementation rules for the WDFW and required under chapter 43.21C RCW, SEPA rules.
Statutory Authority for Adoption: RCW 77.12.047.
Statute Being Implemented: RCW 77.12.047.
Summary: Merging two sets of agency SEPA rules into one set so that proponents both inside and outside the agency need only to refer to one set for determining our SEPA procedures that are required by chapter 43.21C RCW, SEPA rules.
Reasons Supporting Proposal: We have not merged the WACs into one set of rules even though the legislature merged the Department of Fisheries and the Department of Wildlife into the Washington Department of Fish and Wildlife (WDFW) in 1993. WDFW is using two sets of WACs from the former agencies (chapters 232-19 and 220-100 WAC). There are some discrepancies and some omissions between the two sets of WACs. Some information needs clarification.
Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, WA, (360) 902-2930; Implementation: Cynthia Pratt, Habitat Program, 1111 Washington Street, Olympia, WA (360) 902-2575; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA (360) 902-2373.
Name of Proponent: Washington Department of Fish and Wildlife, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The rule updates Washington Department of Fish and Wildlife's SEPA rules by combining two separate WACs that were used by the former Department of Fisheries (chapter 220-100 WAC) and the former Department of Wildlife (chapter 232-19 WAC). The benefit of combining these two sets of rules is for clarify and to bring the rules in compliance with our merged agencies. There were some individual sections of the WACs that were in one set and not the other, some language was unclear and needed to be reworded and some sections were not in compliance with the state SEPA rules (chapter 43.21C RCW, chapter 197-11 WAC). Some information is now outdated.
By combining the sets of WACs and clearing up language, proponents both inside and outside the agency will be better served. Agency SEPA rules will be in one spot (chapter 220-100 WAC) for easier access by the public and agency staff. Updating the wording will provide proponents asking for a SEPA determination from our agency a clear idea as to WDFW SEPA procedures.
Proposal Changes the Following Existing Rules: Housekeeping changes:
| • | Merges two sets of rules into one set (chapter 220-100 WAC). |
| • | Clarifies language in rules. |
| • | Updates definitions. |
| • | Removes an appeal conference which was not in compliance with chapter 43.21C RCW but keeps the administrative appeal process. |
A small business economic impact statement has been prepared under chapter 19.85 RCW.
The State Environmental Policy Act (SEPA) was first adopted in 1971. It was modeled after the National Environmental Policy Act (1969). SEPA was initiated to try to address the public's concerns that government did not consider the environment, and all its parts, in their decision-making. Local and state government had no context or structure to identify environmental issues. SEPA, through chapter 43.21C RCW, provided government with the apparatus to look at environmental impacts from their actions, and to offset these impacts through mitigation. Because SEPA was broad-based and contained little specific direction, the legislature created the Council for Environmental Policy (CEP), instructing them to create rules that would give direction to the interpretation and implementation of SEPA. The council created what was then called SEPA guidelines. In 1981, the legislature created the Commission on Environmental Policy which suggested a number of amendments to reduce duplication and delay, and to simplify the guidelines. The SEPA rules, chapter 197-11 WAC, replaced the previous SEPA guidelines and the chapter became effective in 1984.
RCW 43.21C.120(2) and WAC 197-11-900 require that each agency adopt its own rules to implement the intent of the Department of Ecology's SEPA rules (chapter 197-11 WAC). Through these "agency procedures," agencies may condition or deny proposals if the appropriate policies have been incorporated into regulations, plans or codes.
PART TEN - AGENCY COMPLIANCE, WAC 197-11-900 (1), (2), (3), purpose of this part states:
The purpose of this part is to:
(1) Require each agency to adopt its own rules and procedures [emphasis added] to carry out SEPA and ensure that agency rules and procedures shall have the force and effect of law and shall be consistent with these uniform statewide rules.
(2) Require agencies to include certain items in their rules.
(3) Ensure the documents prepared under the act are available to the public.
WAC 197-11-902 Agency SEPA policies state:
(1) The act and these rules allow agencies to condition or deny proposals if such action is based upon policies identified by the appropriate governmental authority. These policies must be incorporated into regulations, plans, or codes [emphasis added] formally designed by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of substantive authority under SEPA. (RCW 43.21C.060; WAC 197-11-660.) State and local policies so designated are called "agency SEPA policies" in these rules.
(2) ...Agencies may revise or add to their SEPA policies at any time.
(3) An agency's document that includes or references by citation their agency SEPA Policies (WAC 197-11-660(3)) may be included in agency SEPA procedures [emphasis added] (WAC 197-11-904)...
(4) Depending on their content, the formal designation of agency SEPA policies will not necessarily require any environmental review and will normally be categorically exempt as a procedural action under WAC 197-11-8800(20)...
WAC 197-11-904 (1)(5) Agency SEPA procedures states:
(1) Each agency is required by the act and this section to adopt its own rules and procedures for implementing SEPA. (RCW 43.21C.120.) Agencies may revise or add to their SEPA procedures at any time. Agencies may adopt these rules (chapter 197-11 WAC) by reference, and shall meet the requirements of WAC 197-11-906 concerning the content of their procedures. State and local rules for carrying out SEPA procedures are called "agency SEPA procedures." [emphasis added]
(5) The adoption of agency procedures is procedural and shall be categorically exempt under this chapter (WAC 197-11-800(20)).
In 1993, the Washington Department of Wildlife (WDW), formerly the Department of Game (WDG), and the Washington Department of Fisheries (WDF) merged, becoming the Washington Department of Fish and Wildlife (WDFW). Prior to merger, each agency had its own policies and procedures in rule as required by SEPA (WAC 197-11-902, 904).
Presently, WACs from both former agencies are still valid and are in use by WDFW. While similar, the administrative rules for WDF (chapter 220-100 WAC), and WDW (chapter 232-19 WAC), resulted in conflicting directions at merger. This conflicting language within the two specific sets of rules has lead to confusion both for the public as well as WDFW.
For instance, in WAC 197-11-660 SEPA rules, agencies may use substantive authority to incorporate additional mitigation on proposals if there is adverse environmental impacts. The WAC also allows agencies to deny or condition a proposal based on these impacts. In order to implement WAC 197-11-660, agency policies must first be in place. Chapter 232-19 WAC does not address substantive authority other than by reference, but chapter 220-100 WAC discusses when substantive authority may be used:
WAC 220-100-045, Agency policy -- Substantive authority and mitigation:
(2) If an action is subject to SEPA, including an activity or activities requiring a permit from fisheries, and is reasonably likely to have an adverse environmental impact as identified in an environmental document, fisheries will:
(a) Require reasonable alternatives to the action and/or proven measures which will mitigate or eliminate the identified potential adverse impact, and make such alternatives and/or proven mitigation measures conditions of fisheries approval; or
(b) Deny the proposal if significant adverse impacts as identified in a final or supplemental environmental impact statement prepared under chapter 197-11 WAC are not satisfactorily avoided or mitigated by proven techniques.
It becomes more confusing as to how the public should appeal the WDFW's SEPA decisions. WAC 232-19-130 (informal appeal (WDW)) discusses appeal procedures based on "permits" and allows a discussion with the responsible official's supervisor. This WAC is in direct conflict with chapter 197-11 WAC, SEPA rules, which only allows two avenues of appeal: (1) A formal administrative appeal, and (2) through an appeal to the local legislative body. Chapter 220-100 WAC is silent as to the appeal process. While the assumption might have been that the process would revert to the appeal process in chapter 197-11 WAC, this is not clearly stated.
The proposed merged SEPA procedures rules will:
| • | Remove references to the former Departments of Fisheries and Wildlife, and replace them with Department of Fish and Wildlife; |
| • | Merge chapters 220-100 and 232-19 WAC into chapter 220-100 WAC; |
| • | Clarify the merged rules where necessary; and |
| • | Replace conflicting rule statements with those that are consistent with agency policies and the Department of Ecology's SEPA rules. |
The following is an analysis of any small business economic impact that may occur from these nonsubstantive changes.
5. Description of Reporting, Recordkeeping, and Other Compliance Measures Required by Proposal: No additional reporting, record keeping or other compliance measures will be required as a result of the proposed rules.
6. Professional Services Required for Compliance: The merged rules encourage an applicant to provide a location map and plans/drawings for the project. All WDFW permit applications already require this information, e.g., hydraulic project approval (HPA), shellfish import permits, shooting preserve permits, or grass carp permits. It was not made mandatory for a threshold determination, but was encouraged so that a threshold determination may be made in a timely manner and that better environmental review may occur. This enables agencies with jurisdiction to locate and analyze the proposed project so that impacts in reference to their permitting authorities can be identified and conditioned through their permitting requirements. The plans may identify impacts that may not be obvious when reviewing the checklist.
7. Cost of Compliance, Including costs of Equipment, Supplies, Labor and Increased Administrative Costs: Costs should be minimal since complete plans and drawings are already a required component of any application for permits issued by WDFW. Blueprint drawings for SEPA review are not required. Only drawings/plans that are complete enough to render a SEPA determination and for other agencies with jurisdiction to decide whether there will be impacts based on their permitting authority are recommended to be enclosed with the SEPA checklist. The location map can be obtained from a Washington gazetteer. The plans/drawings may be one page to ten pages, depending on the complexity of the project. The number of plans/drawings is left up to the proponent to determine what will be sufficient for achieving a threshold determination.
Assumptions:
Plans/drawings have already been made in order to comply with permitting requirements.
Copying one 8.5 inch by 11 inch (standard size) or an 8.5 inch by 15 inch (legal size) page = $0.15 per page.
The maximum number of pages copied would be 15 (14 pages of plans and one map) per applicant.
Cost: The additional cost to an applicant may range from $0.30 to $2.25 depending on the number of pages.
8. Will Compliance Cause Businesses to Lose Sales or Revenue? No. It is unlikely that the proposed SEPA policies and procedures would affect sales or revenue positively or negatively. However, any effect is likely to be positive. By providing a complete SEPA checklist, the time to process a determination is reduced. Expediting the process would be a benefit to business revenue or sales.
9. Comparison of Costs for the 10% of Businesses That are the Largest Businesses Required to Comply With the Proposed Rule: WDFW, itself is the biggest business affected by the proposed rule. Of the external applicants, businesses associated [with] dredging or restoration are the largest businesses. Occasionally, restoration projects by proponents other than WDFW require that the department act as lead agency because WDFW is the only agency with a required permit. Recent proponents for restoration projects included tribes and private landowners. Other businesses may include local government's road maintenance or public works divisions, pulp mills, pipeline companies, and local landowners. However, these businesses are more likely to require local permits and as a consequence, the local jurisdiction would be lead agency.
SEPA rules identify lead agency responsibility as the local jurisdiction for private projects when one of the agencies with a permit or license is a city, county or other local agency (WAC 197-11-932 and 197-11-934). Our authority as lead agency is limited since only a few permits are issued solely by WDFW (HPA as triggered by WAC 197-11-835 (3) and (5) and 197-11-340(7), grass carp planting, importation of exotic shellfish, or shooting preserve permits). Sometimes, activities will cross WDFW's lands. In that case, we would be agency lead, as well, or co-lead with another jurisdiction. This limitation most often eliminates WDFW from dealing with large businesses, which, because of multiple permit requirements would go through local government for any SEPA determination.
The following are the ten largest agencies/businesses that have been issued SEPA determinations since 1999. This does not include WDFW, which is also required to produce plans/drawings and a map of proposed projects.
1. Puget Sound Energy (Blake Island Cable) = 8 pages; total cost = $1.20.
2. US Coast Guard (Maintenance Dredging) = 8 pages; total cost = $1.20.
3. Consolidated Diking District (Grass Carp) = 2 pages; total cost = $0.30.
4. Mark Heuett General Contractor for Walla Walla Corps of Engineers (Intake Modification) = 5 pages; total cost = $0.75.
5. Columbia-Pacific Resource Conservation and Development (Dredging) = 6 pages; total cost = $0.90.
6. Clallam County Public Works (Dredging) = 3 pages; total cost = $0.45.
7. Limits Game Farm and Preserve (Shooting Preserve) = 3 pages; total cost = $0.45.
8. Royal Bluff Ranch (Wetland Enhancement) = 15 pages; total cost = $2.25.
9. City of Seattle (Grass Carp) = 3 pages; total cost = $0.45.
10. Salmon Restoration Consulting (Stream Channel Relocation) = 5 pages; total cost = $0.75.
Costs to individual project proponents would be comparable to costs of a large business/agency. No requirement is being made that the drawings/plans be professionally produced, although application for a permit may require more specific plans and drawings. It is assumed that if an individual project proponent needed professional drawings and plans for a permit, they could also copy those drawings and plans to send in to WDFW for SEPA review. However, applicants could also produce these themselves, provided the reproductions are accurate enough to render a SEPA determination and appropriate review by permitting agencies.
10. Steps Taken By Agency to Reduce the Costs of the Rule on Small Businesses: The rules are primarily a housekeeping action to merge the rules for SEPA policies and procedures from the former Departments of Fisheries and Wildlife into one set of rules for policy and procedures for WDFW. No other costs, except as identified above, will occur with these proposed rules.
11. Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Agency SEPA rules are exempt from SEPA review (WAC 197-11-800(20)). These proposed rule changes are strictly housekeeping and should not significantly impact small businesses.
12. List of Industries Required to Comply With This Rule: All proponents where WDFW is the lead agency will be required to comply with these rules, including the predominant proponent, WDFW.
Other industries that might require WDFW to be lead agency, and need to follow these proposed rules might include:
1. Habitat restoration consultants/companies.
2. Dredging companies.
3. Cable installation companies.
4. Golf courses/country clubs.
5. Irrigation districts.
6. Construction companies that perform construction in or near the water.
7. Private hunting resorts.
8. Importers of exotic shellfish.
A copy of the statement may be obtained by writing to Washington Department of Fish and Wildlife, Habitat Program, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2534, fax (360) 902-2946.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. These are not hydraulic rules.
Hearing Location: Moses Lake Convention Center, 1475 Nelson Road, Moses Lake, WA 98837, on April 11-12, 2003, begins at 8:00 a.m. on April 11, 2003.
Assistance for Persons with Disabilities: Contact Susan Yeager by March 28, 2003, TDD (360) 902-2207 or (360) 902-2933.
Submit Written Comments to: Evan Jacoby, Washington Department of Fish and Wildlife, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by April 4, 2003.
Date of Intended Adoption: April 11, 2003.
March 4, 2003
Evan Jacoby
Rules Coordinator
OTS-3601.7
AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)
WAC 220-100-010
Definitions.
(1) The definitions of the
words and terms of WAC 197-11-700 through 197-11-730 and WAC 197-11-734 through 197-11-799 are made a part of this chapter
((along with the following addition: Fisheries means
Washington department of fisheries)).
(2) "Environmental document" means any written public document prepared under chapter 197-11 WAC, including department comment letters addressing a SEPA threshold determination or an environmental impact statement (EIS), or supplemental EIS (SEIS).
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-010, filed 9/18/84; Order 76-40, § 220-100-010, filed 5/25/76.]
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-020, filed 9/18/84; 78-05-029 (Order 78-17), § 220-100-020, filed 4/17/78; Order 76-40, § 220-100-020, filed 5/25/76.]
[]
(2) These policies and procedures are developed to
implement SEPA in a manner which reduces duplication,
establishes effective and uniform ((guidelines)) rules,
encourages public involvement, and promotes certainty with
respect to the requirements of the act.
(3) These policies and procedures are not intended to
cover compliance by ((fisheries)) the department with respect
to the National Environmental Policy Act of 1969 (NEPA). In
those situations where ((fisheries)) the department is
required by federal law or regulations to perform some element
of compliance with NEPA, compliance will be governed by the
applicable federal statute and regulations.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-030, filed 9/18/84; Order 76-40, § 220-100-030, filed 5/25/76.]
(2) This chapter applies to all department actions as
defined in WAC 197-11-704 ((and applies to all activities of
fisheries. Furthermore, although these guidelines normally do
not apply to actions of fisheries exempted under WAC 197-11-800 and 197-11-835, fisheries accepts the
responsibility of attempting to follow the intent of SEPA and
its decision making process for exempt actions)).
(3) To the fullest extent possible, ((fisheries)) the
department shall integrate procedures required by this chapter
with existing planning and licensing procedures. These
procedures should be initiated early, and undertaken in
conjunction with other governmental operations to avoid
lengthy time delays and unnecessary duplication of effort.
(4) To the fullest extent possible, the department shall:
(a) Prepare environmental documents that are concise, clear, and to the point, and that are supported by evidence that the necessary environmental analyses have been made.
(b) Find ways to make the SEPA process more useful to decision-makers and the public.
(c) Reduce paperwork and the accumulation of extraneous background data.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-040, filed 9/18/84; 78-05-029 (Order 78-17), § 220-100-040, filed 4/17/78; Order 76-40, § 220-100-040, filed 5/25/76.]
(a) The legislated ((duty of fisheries to preserve,
protect and perpetuate the food fish and shellfish resources
of the state in a manner that does not impair the resource
(RCW 75.08.012))) duties of the department with respect to
fish and wildlife; and
(b) Recognition of the fact 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 (RCW 43.21C.020(31)).
(2) If an action is subject to SEPA, ((including an
activity or activities requiring)) and the proposed activity
requires a permit from ((fisheries)) the department, and is
reasonably likely to have an adverse environmental impact as
identified in an environmental document, ((fisheries will))
the department may:
(a) Require reasonable alternatives to the action and/or
proven measures which will mitigate or eliminate the
identified potential adverse impact, and make such
alternatives and/or proven mitigation measures conditions of
((fisheries)) the department's approval; or
(b) Deny the proposal if significant adverse impacts as identified in a final or supplemental environmental impact statement prepared under chapter 197-11 WAC are not satisfactorily avoided or mitigated by proven techniques.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-045, filed 9/18/84; 78-05-029 (Order 78-17), § 220-100-045, filed 4/17/78.]
(2) Upon written request of an applicant, preliminary
environmental review will be conducted prior to receipt of
detailed project plans and specifications. In such instances,
the applicant shall submit information judged by ((fisheries))
the department to be sufficient to make a preliminary review.
(3) The preliminary review will be advisory only and not
binding upon ((fisheries)) the department. Final review and
determination will be made only upon receipt of detailed
project plans and specifications. The department will make a
determination within ninety days after the application is
complete pursuant to RCW 43.21C.033.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-055, filed 9/18/84.]
[]
(2) The form of the notice shall be substantially in the form provided in WAC 197-11-990. The notice shall be published by the department, applicant, or proponent pursuant to RCW 43.21C.080.
[]
(2) After review of the environmental checklist,
((fisheries)) the department may require the applicant to
submit additional information necessary to properly evaluate
the potential environmental impacts of the project. Field
investigation or research may be required of the applicant or
conducted by ((fisheries)) the department at the applicant's
cost.
(3) ((A draft and final)) Preparation of EISs is the
responsibility of the department's environmental services
division. The responsible official shall be satisfied that
all EISs issued by the department are in compliance with these
rules and chapter 197-11 WAC.
(4) Whenever someone other than the department prepares an EIS the responsible official shall:
(a) Coordinate scoping to insure that the individual preparing the document receives all substantive information submitted by any agency or person.
(b) Direct the areas of research and study to be undertaken and the content and organization of the document.
(c) Assist in obtaining information on file with another agency that is needed by the person preparing the document.
(5) The responsible official may not require more information of a private applicant than allowed by these rules as supplemented and required by chapter 197-11 WAC.
(6) An EIS is required for each project for which a
determination is made that the proposal will have a probable
significant adverse impact on the environment. The applicant
may prepare the EIS if judged by ((fisheries)) the department
to be qualified, have ((fisheries)) the department develop the
EIS, or hire a consultant to do so. In any case, the EIS
shall be prepared under the direction of the responsible
official at the expense of the applicant and final approval is
that of the responsible official. Cost of preparing the EIS
shall be paid by the applicant and shall include fees of the
consultant, ((fisheries)) the department consultation time and
cost of any required materials. If the applicant chooses to
hire a consultant to prepare the EIS, the consultant ((shall))
must be ((chosen from a list of consultants provided by
fisheries)) mutually agreed upon by the applicant and the
department. A performance bond in an amount specified by
((fisheries)) the department may be required of the applicant
to ensure payment of ((fisheries')) the department expenses
pursuant to WAC 197-11-914. Private applicants are encouraged
to be involved in the EIS preparation process.
(((4))) (7) A supplemental EIS shall be prepared as an
addition to ((either)) the ((draft or final)) EIS if
((fisheries)) the department decides that:
(a) There are substantial changes to a proposal which will have a probable significant adverse environmental impact; or
(b) There is significant new information relative to the probable significant environmental impact of a proposal.
(c) ((Its)) Pursuant to WAC 197-11-600 (3)(c), written
comments on the DEIS warrant additional discussion for ((the))
purposes of ((it's)) its action than that found in the ((lead
agency's)) FEIS.
((The provisions of subsection (3) of this section except
for the first sentence, also pertain to a supplemental EIS or
addendum.
(5) Upon the written request of an applicant for a project for which fisheries is the lead agency, fisheries will consider initiating environmental review and preparation of an EIS at the conceptual stage as opposed to the final detailed design stage.))
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-060, filed 9/18/84; 78-05-029 (Order 78-17), § 220-100-060, filed 4/17/78; Order 76-40, § 220-100-060, filed 5/25/76.]
(2) Within ten days of assuming lead agency status,
((fisheries)) the department will notify the proponent of the
proposal in writing as to the reasons for its assumption of
lead agency status.
(3) Prior to preparation of an EIS for the proposal,
((fisheries)) the department will consult with the proponent
and give the proponent an opportunity to modify or change the
proposal in such a way that an EIS may not be necessary as
outlined in WAC 197-11-360(4).
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-065, filed 9/18/84.]
(2) To obtain a hearing, a written request must be filed with the department. The mailing address is: Washington Department of Fish and Wildlife, Habitat Program, 600 Capitol Way North, Olympia, WA 98501-1091. Requests must be filed within thirty days of the department's decision.
(3) The request must be plainly labeled, "request for a formal administrative appeal" and must state within the body of the letter:
(a) The name, address, and phone number of the person requesting the appeal;
(b) The specific agency action that the person contests;
(c) Whether the person is the proponent of the proposal or other basis for interest in the agency action in question;
(d) The date of the SEPA determination;
(e) The attorney's name, address, and phone number, if the person is represented by legal counsel.
(4) The appeal may be conducted by the director, the director's designee, or by an administrative law judge (ALJ) appointed by the office of administrative hearings. If conducted by an ALJ, the ALJ shall issue an initial order pursuant to RCW 34.05.461. The director or the director's designee shall review the initial order and enter a final order as provided by RCW 34.05.464. All hearings conducted by the director, the director's designee, or an ALJ pursuant to this subsection shall comply with the Administrative Procedure Act and the model rules of procedure, chapter 10-08 WAC.
(5) For additional information on appeal procedures, reference should be made to WAC 197-11-680 (3)(a).
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[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-070, filed 9/18/84; Order 76-40, § 220-100-070, filed 5/25/76.]
(a) Be written;
(b) Follow submission of a permit application and
environmental checklist for a nonexempt proposal for which
((fisheries)) the department is lead agency; and
(c) Precede ((fisheries)) the department's actual
threshold determination for the proposal.
(2) The responsible official shall respond to the request
within ((ten)) twenty working days of receipt of the letter;
the response shall:
(a) Be written;
(b) State whether ((fisheries)) the department is
considering issuance of a DS;
(c) Indicate the general or specific area(s) of concern
that led ((fisheries)) the department to consider a DS; and
(d) State that the applicant may change or clarify the proposal to mitigate the impacts indicated in the letter, revising the environmental checklist as necessary to reflect the changes or clarifications.
(3) ((Fisheries)) The department shall not continue with
the threshold determination until receiving a written response
from the applicant changing or clarifying the proposal or
asking that the threshold determination be based on the
original proposal.
(4) If the applicant submits a changed or clarified
proposal, along with a revised environmental checklist,
((fisheries)) the department will make its threshold
determination based on the changed or clarified proposal. The
application is not complete until the applicant responds to
subsection (3) of this section.
(a) If ((fisheries)) the department response to the
request for early notice indicated specific mitigation
measures that would remove all probable significant adverse
environmental impacts, and the applicant changes or clarifies
the proposal to include all of those specific mitigation
measures, ((fisheries)) the department shall issue a DNS and
circulate the DNS for comments as in WAC 197-11-340(2).
(b) If ((fisheries)) the department indicated general or
specific areas of concern, but did not indicate specific
mitigation measures that would allow it to issue a DNS,
((fisheries)) the department shall determine if the changed or
clarified proposal may have a probable significant
environmental impact, issuing a DNS or DS as appropriate.
(5) ((Fisheries)) The department may specify mitigation
measures that would allow it to issue a DNS without a request
for early notice from an applicant. If it does so, and the
applicant changes or clarifies the proposal to include those
measures, ((fisheries)) the department shall issue a DNS and
circulate it for review under WAC 197-11-340(2).
(6) When an applicant changes or clarifies the proposal,
the clarifications or changes may be included in written
attachments to the documents already submitted. If the
environmental checklist and supporting documents would be
difficult to read and/or understand because of the need to
read them in conjunction with the attachment(s) ((fisheries)),
the department may require the applicant to submit a new
checklist.
(7) ((Fisheries)) The department may change or clarify
features of its own proposals before making the threshold
determination.
(8) ((Fisheries')) The department's written response
under subsection (2) of this section shall not be construed as
a determination of significance. In addition, preliminary
discussion of clarification of or changes to a proposal, as
opposed to a written request for early notice, shall not bind
((fisheries)) the department to consider the clarification or
changes in the threshold determination.
(9) When an applicant submits a changed or clarified
proposal pursuant to this section, it shall be considered part
of the applicant's application for a permit or other approval
for all purposes. Unless ((fisheries')) the department's
decision expressly states otherwise, when a mitigated DNS is
issued for a proposal, any decision approving the proposal
shall be based on the proposal as changed or clarified
pursuant to this section.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-075, filed 9/18/84.]
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-080, filed 9/18/84; 78-05-029 (Order 78-17), § 220-100-080, filed 4/17/78; Order 76-40, § 220-100-080, filed 5/25/76.]
(a) Notifying public and private groups and agencies with known interest in a certain proposal or in the type of proposals being considered;
(b) Notifying individuals with known interest in a certain proposal or in the type of proposal being considered;
(c) Publication in a newspaper of general circulation in
the city, county or general area ((in which)) where the
proposal will be implemented; ((and/or))
(d) Posting the property for site specific proposals;
(e) Notifying the news media; and/or
(f) Publishing notice on the department's internet site.
(2) ((Fisheries)) Whenever possible, the department shall
integrate these public notice requirements with existing
notice procedures, including publication in the SEPA Register,
for any department or commission permits or approvals required
for the proposal.
(3) The department may require an applicant to
((perform)) complete the public notice requirements for the
applicant's proposal at the applicant's expense.
[Statutory Authority: RCW 75.08.080. 84-19-053 (Order 84-144), § 220-100-095, filed 9/18/84.]
OTS-6258.1
REPEALER
The following chapter of the Washington Administrative Code is repealed:
| WAC 232-19-010 | Authority. |
| WAC 232-19-015 | Policy. |
| WAC 232-19-020 | Adoption by reference. |
| WAC 232-19-030 | Purpose. |
| WAC 232-19-040 | Additional definitions. |
| WAC 232-19-050 | Designation of responsible official. |
| WAC 232-19-055 | SEPA public information center. |
| WAC 232-19-060 | EIS preparation. |
| WAC 232-19-070 | Environmentally sensitive areas. |
| WAC 232-19-080 | Threshold levels adopted by local governments. |
| WAC 232-19-090 | Coordination of combined state-federal action. |
| WAC 232-19-100 | Public notice requirements. |
| WAC 232-19-110 | Notice/statute of limitations. |
| WAC 232-19-120 | Policies and procedures for conditioning or denying permits or other approvals. |
| WAC 232-19-130 | Informal appeal. |
| WAC 232-19-140 | Formal administrative appeal. |
| WAC 232-19-180 | Severability. |