WSR 03-10-038

PERMANENT RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 03-83 -- Filed April 30, 2003, 4:20 p.m. ]

     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     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 8, Repealed 17.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
     Effective Date of Rule: Thirty-one days after filing.

April 28, 2003

Susan Yeager

for Will Roehl, Chair

Fish and Wildlife Commission

OTS-3601.8


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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-020   Impact of SEPA on ((fisheries)) the department.   ((Fisheries)) The department fully endorses the intent and purpose of SEPA and will make every effort to implement and fulfill the intent and requirements of SEPA and the SEPA rules. The ((capacity of fisheries to provide full service to the public and other agencies is limited by funds and manpower. Fisheries)) department will make every effort to implement SEPA in the best manner possible with the resources available.

[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.]


NEW SECTION
WAC 220-100-027   Critical areas.   During threshold determination and in determining whether a proposal is exempt from SEPA, the department shall give due consideration to a local government's critical area categorical exemption designations made by local governments under WAC 197-11-908.

[]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-030   Purpose.   (1) The purpose of this chapter is to implement chapter 197-11 WAC, SEPA rules, as applicable to ((fisheries)) the department.

     (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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-040   Scope and coverage of this chapter.   (1) It is the intent of ((fisheries)) the department that compliance with this chapter shall constitute complete procedural compliance with SEPA for all actions as defined in WAC 197-11-704.

     (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 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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-045   Agency policy -- Substantive authority and mitigation.   (1) The ((overriding)) policy of ((fisheries)) the department is to avoid or mitigate adverse environmental impacts ((which)) that may result from ((its decisions)) department actions. This policy results from:

     (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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-055   Timing of the SEPA process.   (1) When another agency is the lead agency, the department's environmental review process will normally begin upon receipt of a determination of nonsignificance (DNS), determination of significance (DS), scoping notice, or draft environmental impact statement (DEIS) ((when another agency is the lead agency)). When ((fisheries)) the department is the lead agency for nonagency actions, review will normally begin upon receipt of a complete permit application and a complete environmental checklist. The department typically requests plans and a location map, pursuant to WAC 197-11-100. The applicant may choose to submit this information with the checklist so that review may proceed expeditiously. For ((agency)) department actions, environmental review will normally begin when the proposed action is sufficiently developed to allow preliminary decisions.

     (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 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.]


NEW SECTION
WAC 220-100-057   Threshold levels adopted by local governments.   During threshold determination and in determining whether a proposal is exempt from SEPA, the department shall give due consideration to exempt levels adopted by local governments under WAC 197-11-800.

[]


NEW SECTION
WAC 220-100-058   Notice/statute of limitations.   (1) The department, applicant for, or proponent of an action may publish a notice of action pursuant to RCW 43.21C.080.

     (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.

[]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-060   Summary of information which may be required of a private applicant.   (1) The applicant for each ((project)) proposal for which ((fisheries)) the department is the lead agency shall submit a complete environmental checklist along with a complete application for the required approval.

     (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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-065   Assumption of lead agency status.   (1) Whenever ((fisheries feels)) the department is an agency of jurisdiction and determines that a DNS issued by another lead agency is inappropriate and that the proposal in question could cause significant harm to the resources under its jurisdiction, ((fisheries will)) the department may assume lead agency status per WAC 197-11-948.

     (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.]


NEW SECTION
WAC 220-100-068   Formal administrative appeal of department environmental determinations.   (1) A person aggrieved by the department's environmental determination is entitled to an opportunity for hearing, pursuant to the Administrative Procedure Act, chapter 34.05 RCW.

     (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).

[]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-070   Designation of responsible official.   Under normal circumstances, the responsible official is the ((habitat management division chief)) SEPA/NEPA coordinator or the habitat program's designee. The responsible official shall carry out duties and functions for the purpose of assuring ((fisheries)) the department's compliance with SEPA and SEPA ((guidelines)) rules. The responsible official may delegate duties and functions assigned under this chapter and chapter 197-11 WAC((; the responsible official alone, however, is wholly responsible for proper accomplishment of such duties and functions)). When significant involvements of ((fisheries)) the department converge at a level higher than the ((habitat management division chief)) SEPA/NEPA coordinator, the ((deputy)) director or the director's designee may ((assume)) be assigned the role of responsible official.

[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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-075   Mitigated DNS.   (1) An applicant may ask ((fisheries)) the department whether issuance of a DS is likely for a proposal. This request for early notice must:

     (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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-080   SEPA public information center.   ((Fisheries)) The department designates the ((habitat management division office)) environmental services division of the habitat program as its SEPA public information center. The mailing address is ((Room 115, General Administration Building)) SEPA Coordinator, 600 Capitol Way North, Olympia, Washington ((98504; telephone: (360) 753-6650)) 98501-1091.

[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.]


AMENDATORY SECTION(Amending Order 84-144, filed 9/18/84)

WAC 220-100-095   Public notice.   (1) When required under chapter 197-11 WAC, ((fisheries)) the department will give public notice by one or more of the following methods as appropriate for the specific circumstances:

     (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.

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