FISH AND WILDLIFE
Date of Adoption: April 11, 2003.
Purpose: Amend SEPA rules.
Citation of Existing Rules Affected by this Order: Repealing WAC 232-19-010, 232-19-015, 232-19-020, 232-19-030, 232-19-040, 232-19-050, 232-19-055, 232-19-060, 232-19-070, 232-19-080, 232-19-090, 232-19-100, 232-19-110, 232-19-120, 232-19-130, 232-19-140 and 232-19-180; and amending WAC 220-100-010, 220-100-020, 220-100-030, 220-100-040, 220-100-045, 220-100-055, 220-100-060, 220-100-065, 220-100-070, 220-100-075, 220-100-080, and 220-100-095.
Statutory Authority for Adoption: RCW 77.12.047.
Adopted under notice filed as WSR 03-06-080 on March 4, 2003.
Changes Other than Editing from Proposed to Adopted Version: WAC 220-100-010 - add "(3) 'Department' means the Washington department of fish and wildlife unless otherwise indicated."
WAC 220-100-027 - strike "ordinance treatment of" and plural on "exceptions" and after "exception" add "designations made by local government."
WAC 220-100-040 (4)(c) - after "reduce" add "unnecessary."
WAC 220-100-045(1) - strike "agency" and substitute "department."
WAC 220-100-055(1) - strike "agency will usually" and substitute "department typically"; add plural on "request"; strike "when applicable, if these documents have already been submitted" and substitute "pursuant to WAC 197-11-100"; strike "is advised" and substitute "may choose"; strike "timely manner" and substitute "expeditiously."
WAC 220-100-055(3) - strike "is" and substitute "and supporting documents are."
WAC 220-100-057 - strike "respect threshold" and substitute "give due consideration to exempt."
WAC 220-100-060(1) - strike "project" and substitute "proposal."
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 8, Repealed 17.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making:
Pilot Rule Making:
or Other Alternative Rule Making:
Effective Date of Rule: Thirty-one days after filing.
April 28, 2003
for Will Roehl, Chair
Fish and Wildlife Commission
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).
(3) "Department" means the Washington department of fish and wildlife unless otherwise indicated.
[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 ((
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, ((
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 unnecessary 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, ((
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 ((
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 and
supporting documents are 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
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.
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
The provisions of subsection (3) of this section except
for the first sentence, also pertain to a supplemental EIS or
(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).
[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
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.
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
(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.
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) ((
the department may require the applicant to submit a new
Fisheries)) The department may change or clarify
features of its own proposals before making the threshold
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.
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.]
The following chapter of the Washington Administrative Code is repealed:
|WAC 232-19-020||Adoption by reference.|
|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.|