H-4322.1  _______________________________________________

                          HOUSE BILL 2911

          _______________________________________________

State of Washington      55th Legislature     1998 Regular Session

By Representatives Reams, Cairnes and Thompson

Read first time 01/22/98.  Referred to Committee on House Government Reform & Land Use.

Imposing mitigation measures under the state environmental policy act.

    AN ACT Relating to substantive authority and imposition of mitigation measures under the state environmental policy act; amending RCW 43.21C.065, 43.21C.240, and 36.70B.030; adding a new section to chapter 43.21C RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1.  The legislature recognizes that the growth management act is the fundamental building block of regulatory reform.  The state and local governments have invested considerable resources in the growth management act which, together with chapters 36.70B and 36.70C RCW, should serve as the integrating framework for all other land-use related laws.

NEW SECTION. Sec. 2.  A new section is added to chapter 43.21C RCW to read as follows:

    Any condition imposed pursuant to RCW 43.21C.060 to mitigate impacts on the environment within the jurisdiction of a local government planning under RCW 36.70A.040 must be based on a regulation, plan, or code adopted by that local government pursuant to chapter 36.70A RCW and in effect on the date a complete application is filed, or, if adopted by the local government prior to the enactment of chapter 36.70A RCW, determined by the local government to satisfy the requirements of chapter 36.70A RCW and in effect on the date a complete application is filed.

    Sec. 3.  RCW 43.21C.065 and 1992 c 219 s 1 are each amended to read as follows:

RCW 82.02.050 through 82.02.090 authorize local governments to require the payment of an impact fee for system improvements.  RCW 82.02.050 through 82.02.090 provide the exclusive basis for requiring mitigation for system improvements.  A person ((required to pay an impact fee for system improvements pursuant to RCW 82.02.050 through 82.02.090)) shall not be required to prepare an environmental impact statement or to pay a fee pursuant to RCW 43.21C.060 for ((those same)) system improvements for which an impact fee could be imposed pursuant to RCW 82.02.050 through 82.02.090.

    Sec. 4.  RCW 43.21C.240 and 1995 c 347 s 202 are each amended to read as follows:

    (1) ((If the requirements of subsection (2) of this section are satisfied, a county, city, or town reviewing a project action may determine that)) For local governments planning under chapter 36.70A RCW, the requirements for environmental analysis, protection, and mitigation measures in the county, city, or town's development regulations and comprehensive plans adopted under chapter 36.70A RCW((, and in other applicable local, state, or federal laws and rules)) provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply.

    (2) A county, city, or town not planning under chapter 36.70A RCW may make the determination ((provided for in subsection (1) of this section)) that its development regulations, comprehensive plan, or subarea plans, or other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply if:

    (a) In the course of project review, including any required environmental analysis, the local government considers the specific probable adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan, subarea plan element of the comprehensive plan, or other local, state, or federal rules or laws; and

    (b) The local government bases or conditions its approval on compliance with these requirements or mitigation measures.

    (3) If a county, city, or town's comprehensive plans, subarea plans, and development regulations adequately address a project's probable specific adverse environmental impacts, as determined under subsections (1) and (2) of this section, the county, city, or town shall not impose additional mitigation under this chapter during project review.  Project review shall be integrated with environmental analysis under this chapter.

    (4) ((A comprehensive plan, subarea plan, or development regulation shall be considered to adequately address an impact if the county, city, or town, through the planning and environmental review process under chapter 36.70A RCW and this chapter, has identified the specific adverse environmental impacts and:

    (a) The impacts have been avoided or otherwise mitigated; or

    (b) The legislative body of the county, city, or town has designated as acceptable certain levels of service, land use designations, development standards, or other land use planning required or allowed by chapter 36.70A RCW.

    (5))) In deciding whether a specific adverse environmental impact has been addressed by an existing rule or law of another agency with jurisdiction with environmental expertise with regard to a specific environmental impact, the county, city, or town shall consult orally or in writing with that agency and may expressly defer to that agency.  In making this deferral, the county, city, or town shall base or condition its project approval on compliance with these other existing rules or laws.

    (((6))) (5) Nothing in this section limits the authority of an agency in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by this chapter.

    (((7) This section shall apply only to a county, city, or town planning under RCW 36.70A.040.))

    Sec. 5.  RCW 36.70B.030 and 1995 c 347 s 404 are each amended to read as follows:

    (1) Fundamental land use planning choices made in adopted comprehensive plans and development regulations shall serve as the foundation for project review.  The review of a proposed project's consistency with applicable development regulations, or in the absence of applicable regulations the adopted comprehensive plan, under RCW 36.70B.040 shall incorporate the determinations under this section.

    (2) During project review, a local government or any subsequent reviewing body shall determine whether the items listed in this subsection are defined in the development regulations applicable to the proposed project or, in the absence of applicable regulations the adopted comprehensive plan.  At a minimum, such applicable regulations or plans shall be determinative of the:

    (a) Type of land use permitted at the site, including uses that may be allowed under certain circumstances, such as planned unit developments and conditional and special uses, if the criteria for their approval have been satisfied;

    (b) Density of residential development in urban growth areas; ((and))

    (c) Availability and adequacy of public facilities identified in the comprehensive plan, if the plan or development regulations provide for funding of these facilities as required by chapter 36.70A RCW; and

(d) Protection of critical areas.

    (3) During project review, the local government or any subsequent reviewing body shall not reexamine alternatives to or hear appeals on the items identified in subsection (2) of this section, except for issues of code interpretation.  As part of its project review process, a local government shall provide a procedure for obtaining a code interpretation as provided in RCW 36.70B.110.

    (4) Pursuant to RCW 43.21C.240, ((a local government may determine that)) the requirements for environmental analysis and mitigation measures in development regulations, comprehensive plans adopted pursuant to chapter 36.70A RCW, and other applicable laws provide adequate mitigation for ((some or all of)) the project's specific adverse environmental impacts to which the requirements apply.

    (5) ((Nothing in this section limits the authority of a permitting agency to approve, condition, or deny a project as provided in its development regulations adopted under chapter 36.70A RCW and in its policies adopted under RCW 43.21C.060.  Project review shall be used to identify specific project design and conditions relating to the character of development, such as the details of site plans, curb cuts, drainage swales, transportation demand management, the payment of impact fees, or other measures to mitigate a proposal's probable adverse environmental impacts, if applicable.

    (6))) Subsections (1) through (4) of this section apply only to local governments planning under RCW 36.70A.040.

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