Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-23-176.

     Title of Rule and Other Identifying Information: Washington department of natural resources' (DNR) rules, chapter 332-41 WAC, SEPA policies and procedures.

     Hearing Location(s): Olympia Timberland Regional Library, 313 8th Avenue S.E., Olympia, WA 98501, on March 1, 2007, at 6:30 p.m.

     Date of Intended Adoption: March 27, 2007.

     Submit Written Comments to: Washington Department of Natural Resources, Cynthia R. Pratt, Environmental and Legal Strategies Section, AMP Division, 1111 Washington Street S.E., Olympia, WA 98504-7015, e-mail cynthia.pratt@dnr.wa.gov, fax (360) 902-1789, by March 12, 2007, 5:00 p.m.

     Assistance for Persons with Disabilities: Contact Washington department of natural resources by February 27, 2007, TTY (360) 902-1156.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The changes will update the department's SEPA policies and procedures (chapter 332-41 WAC), which haven't had comprehensive updates since 1984. The proposed changes include clarifying the language, updating references to recodified rules and statutes, writing rules to help meet the governor's plain talk initiative and removing redundancies between the department of ecology's (ecology) State Environmental Policy Act (SEPA) rules (chapters 197-11 WAC and 43.21C RCW).

     Reasons Supporting Proposal: Changes to the ecology's SEPA rules, chapters 43.21C RCW and 197-11 WAC for which DNR's SEPA policies and procedures rules are promulgated from, have changed since chapter 332-41 WAC was last amended. The department's SEPA policies and procedures rules have not been updated since 1992, and most of the chapter has been in effect since 1984. Since then, referenced RCWs and WACs have been recodified and changes to the public land definition have occurred. Language needs additional clarification in some parts of chapter 332-41 WAC also. DNR's SEPA policies and procedures rules (chapter 332-41 WAC) must be in compliance with the ecology's SEPA rule WACs and RCW, so those repeated sections of chapter 197-11 WAC contained in chapter 332-41 WAC were removed. In 2005, the governor instigated in initiative requiring agencies to use plain language for citizens and state employees called "plain talk." These proposed rules have tried to capture the intent of that initiative.

     Statutory Authority for Adoption: Chapter 43.21C RCW; ecology's SEPA rules WAC 197-11-902(2), 197-11-904(1); and the Administrative Procedure Act, chapter 34.05 RCW.

     Statute Being Implemented: Chapter 43.21C RCW, SEPA rules.

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

     Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: None recommended except proposed rule changes.

     Name of Proponent: Washington department of natural resources, governmental.

     Name of Agency Personnel Responsible for Drafting: Cynthia R. Pratt, Environmental and Legal Strategies Section, Olympia, Washington, (360) 902-1633; Implementation: DNR staff, statewide; and Enforcement: Not applicable.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. Minimal, or no impact to small businesses is expected to occur. The proposed rule changes will only make current references to other rules and statutes, clarify language, and reduce redundancy. It also implements the governor's plain talk initiative.

     A cost-benefit analysis is not required under RCW 34.05.328. The proposed rule changes do not fall under the definition of significant rule making.

January 8, 2007

Bonnie Bunning

Executive Director of

Policy and Administration

OTS-9248.4

AMENDATORY SECTION(Amending Order 432, filed 9/5/84)

WAC 332-41-010   Authority.   The department of natural resources adopts these rules ((are promulgated)) under RCW 43.21C.120 (the State Environmental Policy Act) and chapter 197-11 WAC (SEPA rules).

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-010, filed 9/5/84. Formerly WAC 332-40-010.]

WAC

197-11-040	Definitions.
197-11-050	Lead agency.
197-11-055	Timing of the SEPA process.
197-11-060	Content of environmental review.
197-11-070	Limitations on actions during SEPA process.
197-11-080	Incomplete or unavailable information.
197-11-090	Supporting documents.
197-11-100	Information required of applicants.
197-11-300	Purpose of this part.
197-11-305	Categorical exemptions.
197-11-310	Threshold determination required.
197-11-315	Environmental checklist.
197-11-330	Threshold determination process.
197-11-335	Additional information.
197-11-340	Determination of nonsignificance (DNS).
197-11-350	Mitigated DNS.
197-11-360	Determination of significance (DS)/initiation of scoping.
197-11-390	Effect of threshold determination.
197-11-400	Purpose of EIS.
197-11-402	General requirements.
197-11-405	EIS types.
197-11-406	EIS timing.
197-11-408	Scoping.
197-11-410	Expanded scoping. (Optional)
197-11-420	EIS preparation.
197-11-425	Style and size.
197-11-430	Format.
197-11-435	Cover letter or memo.
197-11-440	EIS contents.
197-11-442	Contents of EIS on nonproject proposals.
197-11-443	EIS contents when prior nonproject EIS.
197-11-444	Elements of the environment.
197-11-448	Relationship of EIS to other considerations.
197-11-450	Cost-benefit analysis.
197-11-455	Issuance of DEIS.
197-11-460	Issuance of FEIS.
197-11-500	Purpose of this part.
197-11-502	Inviting comment.
197-11-504	Availability and cost of environmental documents.
197-11-510	Public notice.
197-11-535	Public hearings and meetings.
197-11-545	Effect of no comment.
197-11-550	Specificity of comments.
197-11-560	FEIS response to comments.
197-11-570	Consulted agency costs to assist lead agency.
197-11-600	When to use existing environmental documents.
197-11-610	Use of NEPA documents.
197-11-620	Supplemental environmental impact statement—Procedures.
197-11-625	Addenda—Procedures.
197-11-630	Adoption—Procedures.
197-11-635	Incorporation by reference—Procedures.
197-11-640	Combining documents.
197-11-650	Purpose of this part.
197-11-655	Implementation.
197-11-660	Substantive authority and mitigation.
197-11-680	Appeals.
197-11-700	Definitions.
197-11-702	Act.
197-11-704	Action.
197-11-706	Addendum.
197-11-708	Adoption.
197-11-710	Affected tribe.
197-11-712	Affecting.
197-11-714	Agency.
197-11-716	Applicant.
197-11-718	Built environment.
197-11-720	Categorical exemption.
197-11-722	Consolidated appeal.
197-11-724	Consulted agency.
197-11-726	Cost-benefit analysis.
197-11-728	County/city.
197-11-730	Decision maker.
197-11-732	Department.
197-11-734	Determination of nonsignificance (DNS).
197-11-736	Determination of significance (DS).
197-11-738	EIS.
197-11-740	Environment.
197-11-742	Environmental checklist.
197-11-744	Environmental document.
197-11-746	Environmental review.
((197-11-748	Environmentally sensitive area.))
197-11-750	Expanded scoping.
197-11-752	Impacts.
197-11-754	Incorporation by reference.
197-11-756	Lands covered by water.
197-11-758	Lead agency.
197-11-760	License.
197-11-762	Local agency.
197-11-764	Major action.
197-11-766	Mitigated DNS.
197-11-768	Mitigation.
197-11-770	Natural environment.
197-11-772	NEPA.
197-11-774	Nonproject.
197-11-776	Phased review.
197-11-778	Preparation.
197-11-780	Private project.
197-11-782	Probable.
197-11-784	Proposal.
197-11-786	Reasonable alternative.
197-11-788	Responsible official.
197-11-790	SEPA.
197-11-792	Scope.
197-11-793	Scoping.
197-11-794	Significant.
197-11-796	State agency.
197-11-797	Threshold determination.
197-11-799	Underlying governmental action.
197-11-800	Categorical exemptions.
197-11-810	Exemptions and nonexemptions applicable to specific state agencies.
197-11-830	Department of natural resources.
197-11-880	Emergencies.
197-11-890	Petitioning DOE to change exemptions.
197-11-900	Purpose of this part.
197-11-912	Procedures ((on)) of consulted agencies.
197-11-914	SEPA fees and costs.
197-11-916	Application to ongoing actions.
197-11-920	Agencies with environmental expertise.
197-11-922	Lead agency rules.
197-11-924	Determining the lead agency.
197-11-926	Lead agency for governmental proposals.
197-11-928	Lead agency for public and private proposals.
197-11-930	Lead agency for private projects with one agency with jurisdiction.
197-11-932	Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city.
197-11-934	Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies.
197-11-936	Lead agency for private projects requiring licenses from more than one state agency.
197-11-938	Lead agencies for specific proposals.
197-11-940	Transfer of lead agency status to a state agency.
197-11-942	Agreements on lead agency status.
197-11-944	Agreements on division of lead agency duties.
197-11-946	DOE resolution of lead agency disputes.
197-11-948	Assumption of lead agency status.
197-11-960	Environmental checklist.
197-11-965	Adoption notice.
197-11-970	Determination of nonsignificance (DNS).
197-11-980	Determination of significance and scoping notice (DS).
197-11-985	Notice of assumption of lead agency status.
197-11-990	Notice of action.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-020, filed 9/5/84.]

     (1) "Assistant ((area)) region manager" means a principal assistant to ((an area)) a region manager with responsibility for either ((area governmental)) regulatory or proprietary programs.

     (2) ((Area manager means the person responsible for the administration of a geographic field unit, as designated by the organization plan of the department.

     (3))) "Commissioner" means the commissioner of public lands, who is the administrator of the department of natural resources as established by chapter 43.30 RCW.

     (((4) Department means the Washington state department of natural resources.

     (5))) (3) "Division" means any one of the ((eleven)) principal units of ((the department's headquarters staff administering)) DNR that administers a program and is designated on DNR's management chart as a "division."

     (((6))) (4) "Division manager" means the person with overall responsibility for the functioning of one of ((the eleven)) DNR's divisions.

     (((7))) (5) "DNR" means the Washington state department of natural resources.

     (6) "Environmental coordinator" means the ((person who coordinates)) DNR's designated SEPA environmental assistant division manager, and designees such as DNR SEPA center personnel, designated to help the responsible official comply with SEPA ((compliance)) procedures for ((the department)) DNR.

     (((8))) (7) "Notice of final determination" means a DNR document that provides the status of a threshold determination and states whether a threshold determination was retained as final, modified, withdrawn, or delayed.

     (8) "Proponent" means applicant, as defined in WAC 197-11-716, or a party with a proposal, as defined in WAC 197-11-784.

     (9) "Public lands" means ((state forest lands as described in chapter 76.12 RCW, and lands belonging to or held in trust by the state of Washington as described in RCW 79.01.004)) lands of the state of Washington administered by DNR, including but not limited to state lands, state forest lands, and aquatic lands as defined in chapters 79.02, 79.70 and 79.71 RCW.

     (10) "Region manager" means the person responsible for the administration of a geographic field unit, as designated by the management organizational chart of DNR. They supervise assistant region managers.

     (11) "SEPA center" means the DNR section responsible for printing, mailing, retaining SEPA documents, and coordination of the SEPA process. The SEPA center is located at Washington Department of Natural Resources, 1111 Washington Street S.E., Olympia, Washington 98504-7015.

     (12) "State forest lands" means lands acquired under RCW 79.22.010, 79.22.020, and 79.22.040.

     (13) "State-owned aquatic lands" means all tidelands, shorelands, harbor areas, the beds of navigable waters, and waterways owned by the state and administered by DNR or managed under RCW 79.105.420 by a port district and as defined in RCW 79.105.060.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-040, filed 9/5/84. Formerly WAC 332-40-040.]

     (c))) (1) How does this section relate to WAC 197-11-055? This section integrates SEPA review into DNR's activities consistent with WAC 197-11-055, which DNR has incorporated by reference.

     (2) What are DNR's SEPA considerations prior to issuance of the threshold determination? DNR should conduct SEPA review consistent with the following guidelines:

     (a) When is lead agency determined? DNR should determine whether DNR or another agency is the SEPA lead agency within five working days of receiving the nonexempt proposal. See WAC 197-11-050 and 197-11-922 through 197-11-940. If DNR is not the lead agency, DNR shall send the complete environmental checklist and a copy of the permit application or proposal to the lead agency with an explanation of why DNR identified the agency as the lead agency.

     (b) When is exempt status determined? When DNR receives a permit application or proposal, the agency shall promptly determine whether DNR's SEPA action is "categorically exempt" or statutorily exempt from SEPA. If exempt, and WAC 197-11-305 does not remove categorical exempt status, DNR has no further obligation under SEPA.

     (c) Under what circumstances does DNR request an environmental checklist? If DNR's action is not exempt and DNR is the lead agency, DNR shall ask the proponent to complete an environmental checklist.

     (d) When does DNR not need an environmental checklist? A checklist is not needed if DNR and the proponent agree an EIS is required, SEPA compliance has been completed, or a NEPA document was completed and found adequate for SEPA requirements.

     (e) When will DNR start environmental review of non-DNR proposals? DNR shall start a threshold environmental review when DNR receives an application and associated completed environmental checklist.

     (f) When will DNR start environmental review of DNR proposals? DNR should commence the threshold environmental review of DNR proposals that do not involve a DNR permit when a completed checklist is submitted and the principal features of the proposal and its environmental impacts can be reasonably identified.

     (3) When may an applicant request preliminary SEPA review and what are the consequences? ((If the department's)) DNR shall accept applicant requests for preliminary environmental review before requiring detailed project plans and specifications when DNR's only action is a decision on a permit that requires detailed project plans and specifications((, the department shall provide, upon request by the applicant,)). DNR may accept other applicant requests for preliminary environmental review ((prior to submittal of detailed plans and specifications)) when DNR deems it appropriate. This preliminary review will be advisory only and not binding on the department. Final review and determination will be made only upon receipt of all essential detailed project plans and specifications ((if these are essential to a meaningful environmental analysis)). DNR shall conduct a preliminary environmental review when it receives a request for preliminary review along with the following information:

     (a) Site-specific maps containing clear proposal boundaries and clear topographic details;

     (b) Complete and accurate description of the proposal; and

     (c) Any other information that may be required under WAC 197-11-100 and 197-11-335.

     (4) When should DNR commence internal SEPA discussions regarding DNR proposals? If DNR initiated the environmental action, DNR shall coordinate among appropriate staff, including the SEPA center, as necessary. SEPA discussions should be coordinated with staff as soon as a proposal starts being developed.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-055, filed 9/5/84. Formerly WAC 332-40-055.]

     (3))) (1) What are the timing requirements for threshold determinations? WAC 197-11-310 requires that a threshold determination (either of nonsignificance or significance) be made no later than ninety days after the application and supporting documentation are determined to be complete. In most cases, ((the time to)) DNR should complete a threshold determination ((should not exceed)) within fifteen days, if possible, except for Class IV(( - special)) forest practices, in which case the threshold determination ((will)) shall be made within ten days of receiving a complete application, including a complete environmental checklist. Complex proposals, those where additional information is needed, and/or those accompanied by an inaccurate checklist may require additional time. Upon request by ((an applicant)) a proponent, the responsible official shall select a date for making the threshold determination and notify the ((applicant)) proponent of such date in writing.

     (((4) All threshold determinations shall be documented in:

     (a) A determination of nonsignificance (DNS) (WAC 197-11-340); or

     (b) A determination of significance (DS) (WAC 197-11-360).)) (2) When should DNR issue a notice of final determination? A notice of final determination should be issued after the SEPA comment period for an initial determination of nonsignificance.

     (a) This notice should document whether the determination has been:

     (i) Retained;

     (ii) Modified;

     (iii) Delayed; or

     (iv) Withdrawn.

     (b) After an initial threshold determination is delayed, another notice of final determination should be issued to identify whether the proposal has been retained, modified or withdrawn.

     (c) Any notice of final determination should be sent to the original mailing list for the proposal and to any additional parties that commented on the proposal.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-310, filed 9/5/84. Formerly chapter 332-40 WAC.]

     (a) ((Be written;)) Must be in writing;

     (b) Shall follow submission of a permit application, if applicable, and environmental checklist ((for a nonexempt proposal for which the department is lead agency)); and

     (c) ((Precede the department's actual)) Must be received by DNR before DNR issues an initial threshold determination for the proposal.

     (2) How should DNR respond to an early notice request? The responsible official or designee ((shall)) should respond to ((the)) a request for early notice within ten ((working)) business days of receipt ((of the letter;)). DNR should respond to a forest practices applicant as soon as possible because RCW 76.09.050 only allows ten days to conduct a threshold evaluation. If DNR is not the proposal's proponent, the response shall meet the following requirements:

     (a) ((Be written;)) The response must be in writing;

     (b) The response shall state whether ((the department)) DNR is considering issuance of a DS;

     (c) The response shall indicate the general or specific area(s) of concern that led ((the department)) DNR to consider a DS; and

     (d) The response shall 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) ((The department)) How should early review requests and responses to DNR proposals be processed? If a project leader from within DNR requests early notice, it is advisable that both the request and the response be documented in writing for tracking purposes.

     (4) What is the review process for proposals pending a request for early notice? DNR 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, the department will make its threshold determination based on the changed or clarified proposal)) to conduct SEPA review on the originally submitted proposal until a proposal's proponent requests, in writing, that the proposal be changed or clarified.

     (5) What should DNR review when changes or clarifications are added to a proposal? If a proponent submits changes or clarifications under this section, DNR shall review these changes or clarifications as part of the proposal.

     (a) If ((the department's)) DNR's response to the request for early notice indicated specific mitigation measures that would remove all probable significant adverse environmental impacts, and the ((applicant)) proponent changes or clarifies the proposal to include all of those specific mitigation measures, ((the department)) DNR shall issue a determination of nonsignificance and circulate the DNS for comments as in WAC 197-11-350(((2))).

     (b) If ((the department indicated)) DNR indicates general or specific areas of concern, but ((did)) does not indicate specific mitigation measures that would allow it to issue a DNS, ((the department)) DNR shall determine if the changed or clarified proposal may have a probable significant environmental impact, ((issuing)) and issue a DNS or DS, as appropriate.

     (((5) The department)) (6) May DNR propose mitigation to reduce impacts of the proposal? Even without a request for early notice, DNR may specify mitigation measures that would allow ((it)) DNR to issue a DNS ((without a request for early notice from an applicant)). If ((it does so, and the applicant)) a proponent changes or clarifies the proposal to include ((those)) DNR's proposed measures, ((the department)) DNR shall issue a DNS consistent with WAC 197-11-350 and circulate it for review ((under WAC 197-11-350(2))).

     (((6))) (7) How may a proponent change a proposal? When ((an applicant)) a proponent changes or clarifies the proposal, the ((clarifications or)) changes or clarifications may be ((included in written)) added as attachments to ((the)) previously submitted 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)) DNR may require the applicant to submit a new checklist.

     (((7) The department)) (8) May DNR change its own proposals? DNR may change or clarify features of its own proposals before making the threshold determination consistent with WAC 197-11-350.

     (((8) The department's written response under subsection (2) of this section)) (9) What is the effect of preliminary discussions? DNR's indication that a DS appears likely shall not be construed as a determination of significance. ((In addition,)) DNR's preliminary discussion of possible clarification ((of)) or changes ((to a proposal, as opposed to a written request for early notice,)) shall not bind ((the department to consider the clarification or changes in its threshold determination)) DNR in making a determination of nonsignificance.

     (((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, including enforcement of the permit or other approval. Unless 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.)) (10) When should DNR issue a notice of final determination for a mitigated determination of nonsignificance? DNR should issue a notice of final determination after the SEPA comment period has ended. This notice should document whether the determination has been:

     (a) Retained;

     (b) Modified;

     (c) Delayed; or

     (d) Withdrawn.

     (i) If an initial threshold determination is delayed, DNR should issue another notice of final determination to identify whether the proposal has been retained, modified or withdrawn.

     (ii) DNR should send any notice of final determination to the original mailing list for the proposal and any additional parties that commented on the proposal.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-350, filed 9/5/84. Formerly chapter 332-40 WAC.]

[]

     (2) ((The department shall make copies of environmental documents available in accordance with chapter 42.17 RCW, charging only those costs allowed plus mailing costs. Allowable costs for environmental documents may be indicated in the documents and made payable to the department. However, no charge shall be levied for circulation of documents to other agencies as required by these rules. If requested, the department will normally waive the charge for an environmental document provided to a public interest organization.)) How does DNR distribute SEPA documents? When DNR is the lead agency, DNR personnel shall distribute SEPA documents as required by chapter 197-11 WAC unless another agency is nominal co-lead with DNR. The following are acceptable methods of distribution:

     (a) E-mail environmental documents including attached checklists and backup materials provided the recipient agency or interested party has made its e-mail address available to DNR;

     (b) Mail environmental documents, including attached checklists and backup materials, on CDs or as hardcopies to agency mailing lists that include either general lists or lists for specific proposals or subject areas.

     (3) May DNR charge for multiple copies? A requestor asking for additional hard copies of a SEPA document may be required to pay additional copying fees per WAC 197-11-504, 332-10-090 and 332-10-170, and RCW 42.17.300.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-504, filed 9/5/84. Formerly chapter 332-40 WAC.]

     (a) DNSs under WAC 197-11-340;

     (b) DSs (scoping notices) under WAC 197-11-408;

     (c) EISs under WAC 197-11-455, 197-11-460, and 197-11-620;

     (d) Adoption Notices to the extent required by WAC 197-11-610 and 197-11-630; and

     (e) Notices of action under RCW 43.21C.080 and 43.21C.087.

     (2) What is the timing to submit documents to the SEPA register? DNR shall submit the environmental documents listed in subsection (1) of this section promptly and in accordance with procedures established by the department of ecology. According to WAC 197-11-340, DNR shall send the document to the department of ecology on the date of issue of the threshold determination.

[]

     (d) Post notices and environmental documents on DNR's SEPA center web site.

     (2) What if there are existing notice procedures regarding DNR's governmental decisions? Whenever possible, ((the department)) DNR shall integrate the public notice required under this section (((WAC 197-11-340, 197-11-360, 197-11-455, 197-11-502, and 197-11-535))) with existing notice procedures for ((the department's)) DNR permits or approvals required for the proposal. DNR must comply with WAC 197-11-502 (Inviting comment), WAC 197-11-508 (SEPA register), and WAC 197-11-510 (Public notice).

     (3) ((The department shall use one or more of the following reasonable methods of public notice, taking into consideration the geographic area affected by the proposal, the size and complexity of the proposal, the public notice requirements for the permit or approval required from the department, public interest expressed in the proposal, and whether the proposal is a project or regulation:

     (a) Notifying persons or groups who have expressed interest in the proposal, that type of proposal, or proposals in the geographic area in which the proposal will be implemented if approved;

     (b) Publication in a newspaper of general circulation in the area in which the proposal will be implemented; and/or

     (c) Posting the property.

     (4) The department may require an applicant to perform the public notice requirement at his or her expense.)) How are watershed analysis public notices issued? To receive forest practice approval, DNR allows thirty days to review and provide public input on proposed watershed prescriptions. DNR through its SEPA center must also give public notice and provide for public comments on a nonproject SEPA review of the proposed watershed analysis to assess environmental impacts as provided under RCW 43.21C.260. As directed in subsections (1) and (2) of this section for providing public notice, DNR uses two concurrent pathways to solicit public comment on watershed analysis. DNR requests public comments to be:

     (a) Sent to DNR on watershed analysis prescriptions consistent with forest practice rules under WAC 222-10-035 and 222-22-080; and

     (b) Sent to the SEPA center on environmental impacts consistent with SEPA.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-510, filed 9/5/84. Formerly chapter 332-40 WAC.]

     (a) Geothermal resources. ((The department)) DNR recognizes the need to protect the public from geothermal drilling effects such as the contamination of the ground water, the surface water, the possibility of a blowout, fire hazards, drilling fluids, and surface disturbance. ((The department)) DNR may, when necessary, condition the following ((actions)) aspects of a drilling operation to mitigate specific adverse environmental impacts:

     (i) Location of the well;

     (ii) Casing program;

     (iii) Makeup of drilling fluids.

     (b) Surface mining. To provide that the usefulness, productivity, and scenic values of all lands and waters involved in surface mining within the state will receive the greatest practical degree of protection and restoration, the following aspects of surface mining may be conditioned:

     (i) Proposed practices to protect adjacent surface resources, including but not limited to soil and water;

     (ii) Specifications for surface gradient restoration to a surface suitable for the proposed subsequent use of the land after reclamation is completed, and proposed method of accomplishment;

     (iii) Matter and type of revegetation or other surface treatment of disturbed areas;

     (iv) Method of prevention or elimination of conditions that will create a public nuisance, endanger public safety, damage property, or ((be hazardous to vegetative)) pose a hazard to plant, animal, fish, or human life in or adjacent to the area;

     (v) Method of control of contaminants and disposal of surface mining refuse;

     (vi) Method of diverting surface waters around the disturbed areas;

     (vii) Method of restoration of stream channels and stream banks to a condition minimizing erosion and siltation and other pollution.

     (c) Upland and aquatic right of way grants. Recognizing that construction and/or reconstruction under upland and aquatic right of way grants can create adverse impacts to the elements of the environment, it is the policy of ((the department)) DNR to condition grants where necessary and where allowed by state and federal law:

     (i) To protect all surface resources including but not limited to soil and water, through authorized right of way operations on public lands, and to cause on a continuing basis the rehabilitation or reestablishment ((on a continuing basis)) of the vegetative cover, soil stability and water condition appropriate to intended subsequent use of the area;

     (ii) To meet air quality standards; ((and))

     (iii) To protect recreational and special use areas under lease ((by requiring mitigating action)); and

     (iv) To meet obligations under DNR's habitat conservation plans, any amendments to DNR's habitat conservation plans, or the Policy for Sustainable Forests adopted in 2006, and any future updates to the policy.

     (d) ((Marine)) State-owned aquatic lands. In managing state-owned aquatic lands, ((the department)) DNR shall consider the natural values of state-owned aquatic land such as wildlife habitat, natural area preserves, representative ecosystems, or spawning area prior to issuing any initial lease or authorizing any change in use. ((The department may withhold))

     (i) DNR may refrain from leasing lands ((which)) that it finds to have significant natural values, as described in this subsection, or may provide within any lease for the protection of such values.

     (ii) DNR may condition its proposals to meet its obligations under any future aquatic habitat conservation plan, or any amendments to DNR's aquatic habitat conservation plans.

     (e) Public lands leases and contracts. Under authority granted by chapters ((76.12, 79.01, 79.08, 79.12, 79.14, and 79.28 RCW, the department has authority to set terms and conditions in granting a lease or contract as long as such terms and conditions are not inconsistent)) 79.02, 79.13, 79.14, 79.15, 79.22 and 79.105 RCW, DNR may set any lease or contract terms and conditions that are consistent with state law. For public lands, ((the department)) DNR may condition or withhold a lease or contract where significant adverse environmental impacts associated with a lease proposal or contract proposal will occur. DNR may condition its proposals to meet its obligations under any current or future habitat conservation plan, or any amendments to DNR's habitat conservation plans, or the Policy for Sustainable Forests adopted in 2006, and any future updates to the policy.

     (f) Timber sales. Department policies for the sale of timber from public lands are found ((in the Forest Resource Plan, adopted July 1992)) under DNR's habitat conservation plans, any amendments to DNR's habitat conservation plans, or in the Policy for Sustainable Forests adopted in 2006 and any future updates to the policy.

     (g) Forest practices. ((A Class IV-Special forest practice approval will be conditioned when necessary to mitigate specific adverse impacts which are identified in the environmental documents prepared under SEPA. An application for a Class IV-Special forest practice will be denied when the proposal would result in significant adverse impacts identified in a final or supplemental environmental impact statement prepared under SEPA, and reasonable mitigation measures are insufficient to mitigate the identified impacts and denial is consistent with chapters 43.21C and 76.09 RCW and chapter 197-11 WAC.

     (h) Fire control.

     (i) Burning permits. The department may condition or deny the issuance of a burning permit for the protection of life, property, or air quality standards.

     (ii) Dumping permits. The department may condition or deny the issuance of a dumping permit for the protection of forest lands from fire.)) SEPA policies related to the review of environmental impacts, conditioning, and disapproval of forest practices are adopted by the forest practices board and are contained in chapter 222-10 WAC. WAC 222-10-010 adopts by reference policies of SEPA as set forth in RCW 43.21C.020. WAC 222-10-050 adopts by reference the SEPA Rules adopted by the state of Washington department of ecology, chapter 197-11 WAC, except those rules that may not be applicable.

     (2) ((Policies - general.)) What are DNR's general policies for conditioning or denying permits or approvals? The policies set out in subsection (1) of this section do not anticipate all situations which may result in placing conditions on a permit or denial of a proposal((,)) following environmental review. ((The department)) DNR therefore adopts the policies set forth in the State Environmental Policy Act, RCW 43.21C.020, as further basis for conditioning or denying a public or private proposal under SEPA. Those policies are to:

     (a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

     (b) Assure for all people of Washington safe, healthful, productive, and esthetically and culturally pleasing surroundings;

     (c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;

     (d) Preserve important historic, cultural, and natural aspects of our national heritage;

     (e) Maintain, wherever possible, an environment which supports diversity and variety of individual choice;

     (f) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and

     (g) Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

     (3) ((Decisions to condition or deny.

     (a) When the environmental document for a proposal shows it will cause adverse impacts that the proponent does not plan to mitigate the decision maker shall consider whether:

     (i) The environmental document identifies mitigation measures that are reasonable and capable of being accomplished;

     (ii) Other local, state, or federal requirements and enforcement would mitigate the significant adverse environmental impacts; and

     (iii) Reasonable mitigation measures are sufficient to mitigate the adverse impacts.

     (b) The decision maker may:

     (i) Condition the approval for a proposal if mitigation measures are reasonable and capable of being accomplished and the proposal, without such mitigation measures, is inconsistent with the policies in subsections (1) and (2) of this section;

     (ii) Deny the permit or approval for a proposal if reasonable mitigation measures are insufficient to mitigate significant adverse environmental impacts and the proposal is inconsistent with the policies in subsections (1) and (2) of this section.

     (iii) The procedures in WAC 197-11-660 must be followed when conditioning or denying permits or other approvals.)) What procedures must DNR follow to condition or deny a proposal? DNR must follow the procedures in RCW 43.21C.060 and WAC 197-11-660 when conditioning or denying permits or other approvals under SEPA. Conditioning must be in writing and may be added only to mitigate specific adverse environmental impacts that are identified in the environmental document. To deny a proposal under SEPA, DNR must find that the proposal will result in significant adverse impacts as identified in a final EIS or final supplemental EIS, and that reasonable mitigation measures are insufficient to mitigate any identified impact.

[Statutory Authority: RCW 43.21C.120 and chapter 34.05 RCW. 93-01-126 (Order 607), § 332-41-665, filed 12/21/92, effective 1/21/93. Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-665, filed 9/5/84. Formerly chapter 332-40 WAC.]

     (2) ((The department determines that such decisions to sell timber from public lands do not have potential for a significant impact on the environment if they are sales appraised by the department at an amount not exceeding the amount specified in RCW 79.01.200 as the upper limit for sale under terms and conditions prescribed by the department, and if such sales, other than thinning or salvage sales, do not involve harvest units larger than twenty acres.)) What is the threshold for determining that timber sale decisions are exempt from SEPA?

     (a) The following DNR timber sale decisions do not have a potential for significant impact on the environment and are categorically exempt from SEPA:

     (i) Timber sales containing harvest units of less than twenty acres that DNR appraises to be less than the amount specified in RCW 79.11.130; and

     (ii) Thinning or salvage timber sales of any unit size that DNR appraises to be less than the amount specified in RCW 79.11.130.

     (b) These sales are small sales not requiring approval by the board of natural resources and have low volume and low acreage. ((The department)) DNR has not extended this determination to sales requiring approval by the board of natural resources because of the public values associated with public lands. However, this determination is not intended to alter ((the department's)) DNR's SEPA compliance responsibility for regulatory decisions concerning forest practice applications for state and private lands under RCW 76.09.050 and WAC 222-16-050.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-833, filed 9/5/84. Formerly chapter 332-40 WAC.]

     (1) Each division manager or designee shall review the environmental checklists under the division's authority and determine if the department is the lead agency. When the department is not the lead agency, the environmental checklists shall be forwarded to the environmental coordinator for processing under procedures set forth in WAC 197-11-924.)) (1) Who may serve as DNR's SEPA responsible official? Since the responsible official shall carry out duties and functions for the purpose of assuring DNR's compliance with SEPA and the SEPA rules, it is important that DNR clearly designates who will be the responsible official for a proposal.

     (a) DNR's responsible official will be as follows:

     (i) Division manager;

     (ii) Designated region manager; or

     (iii) Designated assistant region manager.

     (b) The responsible official for the harbor line commission shall be the division manager of the aquatic resources division.

     (c) When the region manager or assistant region manager is involved with the proposal, or during emergencies, i.e., fire season, it may be necessary to assign the responsible official duties for a proposal to a region manager in another region. The division manager may also assume responsible official duties for the proposal.

     (d) When potentially significant conflicting DNR interests exist involving DNR proposals that converge at the division manager or region manager level, or the proposal involves more than one region, a superior management-level official may act as the responsible official. See subsection (4) of this section for recommended qualifications.

     (2) What are the responsible official's duties? When ((the department)) DNR is the lead agency, the responsible ((division manager or designee will)) official shall review the environmental checklist((s)) and make the threshold determination((s under the provisions of)) in compliance with this chapter, chapters 43.21C RCW and 197-11 WAC, and specifically, WAC 197-11-330.

     (3) What other procedural requirements must be followed? The ((division manager or designee)) responsible official shall carry out further SEPA compliance under WAC 197-11-340, 197-11-350, or 197-11-360, as appropriate. This includes notice and circulation requirements for threshold determinations.

     (4) What are the general qualifications of a DNR responsible official? The responsible official shall not be the applicant, project leader, or the decision maker for the proposal. The official shall have general technical expertise sufficient to assess the impacts of the proposal.

     (5) What if a determination of significance is issued? When an environmental impact statement is required based on the threshold determination, scoping and EIS preparation under chapter 197-11 WAC shall ((begin)) occur under direction of the responsible official.

[Statutory Authority: Chapter 43.21C RCW and RCW 43.30.150. 84-18-052 (Order 432), § 332-41-910, filed 9/5/84. Formerly chapter 332-40 WAC.]

     The following sections of the Washington Administrative Code are repealed:

WAC 332-41-420	EIS preparation.
WAC 332-41-508	Notice of environmental documents.
WAC 332-41-920	Agencies with environmental expertise.

© Washington State Code Reviser's Office