ORD 98-37 AMENDING ENVIRONMENTAL POLICYORDINANCE NO. 98-37
AN ORDINANCE of the City of Bainbridge Island,
Washington, amending Chapter 16.04,
ENVIRONMENTAL POLICY, to comply with revisions to
the State Environmental Policy Act (SEPA) rules, chapter
197-11 WAC, by amending Sections 16.04.020, 16.04.050,
16.04.055, 16.04.065, 16.04.100, 16.04.130, 16.04.170, and
16.04.175 of the Bainbridge Island Municipal Code.
WHEREAS, 1995 regulatory reform legislation (ESHB 1724) and 1997 legislation
(ESB 6094) resulted in new rules and amendment to existing rules of the State
Environmental Policy Act (SEPA) rules, chapter 197-11 WAC and requires that the City
amend environmental policies;
NOW, THEREFORE, THE CITY COUNCIL OF THE
BAINBRIDGE ISLAND, WASHINGTON, DO ORDAIN, as follows:
CITY OF
Section 1. Section 16.04.020 of the Bainbridge Island Municipal Code, is amended as
follows:
16.04.020 Purpose of this part and adoption by reference.
This part contains the basic requirements that apply to the SEPA process. The city adopts
the following sections of Chapter 197-11 of the Washington Administrative Code (WAC)
by reference:
WAC
197-11-040
197-11-050
197-11-055
197-11-060
197-11-070
197-11-080
197-11-090
197-11-100
197-11-158
Definitions.
Lead agency.
Timing of the SEPA process.
Content of environmental review.
Limitations on actions during SEPA process.
Incomplete or unavailable information.
Supporting documents.
Information required of applicants.
GMA project review - Reliance on existing plans, laws and regulations.
197-11-164
197-11-168
197-11-172
Planned actions - Definition and criteria.
Ordinances or resolutions designating planned actions - Procedures.
Planned actions - Project review.
Section 2. Section 16.04.050 of the Bainbridge Island Municipal Code, is amended as
follows:
16.04.050 Lead agency determination and responsibilities.
A. If the city receives an application for or initiates a proposal that involves a
nonexempt action, the city shall determine the lead agency for that proposal under WAC
197-11-050 and 197-11-922 through 197-11-940, unless the lead agency has been
previously determined or the city is aware that another agency is in the process of
determining the lead agency.
B. When the city is not the lead agency for a proposal, the city shall use and consider,
as appropriate, either the DNS or the final EIS of the lead agency in making decisions on
the proposal. The city shall not prepare or require preparation of a DNS or EIS in addition
to that prepared by the lead agency, unless required under WAC 197-11-600. In some
cases, the city may conduct supplemental environmental review under WAC 197-11-600.
C. If the city receives a lead agency determination made by another agency that
appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may
object to the determination. Any objection must be made to the agency originally making
the determination and resolved within 14 15 days of receipt of the determination, or the
city must petition the Department of Ecology for a lead agency determination under WAC
197-11-946 within the 14 -1-5-day time period. Any such petition on behalf of the city may
be initiated by the responsible official.
D. The city is authorized to make agreements as to lead agency status or shared lead
agency duties for a proposal under WAC 197-11-942 and 197-11-944; provided, that the
responsible official and any city department that will incur responsibilities as the result of
such agreement approve the agreement.
E. The city, in making a lead agency determination for a private project, shall require
sufficient information from the applicant to identify which other agencies have
jurisdiction over the proposal (that is: which agencies require nonexempt licenses?). (Ord.
92-06 § 1, 1992)
Section 3.
follows:
Section 16.04.055 of the Bainbridge Island Municipal Code, is amended as
16.04.055 Additional considerations in time limits applicable to the SEPA process.
Time estimates contained in this section (expressed in calendar days) shall apply when
the city processes licenses for all private projects and those governmental proposals
submitted to the city by other agencies. The actual time may vary with the complexity of
the project, availability of staff, cooperation of agencies with jurisdiction or expertise, etc.
Thc timc estimates contained hcrcin shall not bc construed to bc mandatory. Time periods
for making threshold determinations shall commence upon payment of fees.
A. Categorical Exemptions. The city will normally identify whether an action is
categorically exempt within seven days of receiving a completed application.
B. Threshold Determinations.
1. Thc city will normally complete threshold detcrminations that can bc based solely upon
rcvicw of thc environmental checklist for thc proposal within 15 days of thc datc an
applicant's complcted application and complotod checklist arc submitted.
2. Whcn thc rcsponsiblc official requircs furthcr information from thc applicant or
consultation with other agcncics with jurisdiction:
a. Thc city will normally request such further information within 15 days of recciving a
completed application and completed cnvironmcntal checklist;
b. Thc city will normally wait no longcr than 30 days for a consulted agcncy to rcspond;
c. Thc rcsponsiblc official will normally complctc thc threshold dctcrmination within 15
days of recciving thc requcsted information from thc applicant or thc consulted agcncy.
3. Whcn thc city must initiatc further studies, including ficld invcstigations, to obtain thc
information to makc thc thrcshold detormination, thc city will normally complctc thc
studics within 30 days of recciving a completed application and a complcted checklist.
d. Thc city will normally complete thrcshold dctcrminations on actions whcrc thc
applicant recommcnds in writing that an lilS bc prcpared, becausc of thc probablc
significant advcrsc cnvironmcntal impact(s) dcscribed in thc application, within 15 days
of recciving a complcted application and complcted checklist. (Ord. 92-06 § 1, 1992)
When the city is lead agency for a proposal, the followin~ threshold determination timing
requirements apply:
1. If a DS is made concurrent with the notice of application, the DS and scoping
notice shall be combined with the notice of application (RCW 36.70B. 110). Nothing in
this subsection prevents the DS/scoping notice from bein~ issued before the notice of
application. If sufficient information is not available to make a threshold determination
when the notice of application is issued, the DS may be issued later in the review process.
2. If the city is lead agency and project proponent or is fundin~ a project; the city
may conduct its review under SEPA and may allow appeals of procedural determinations
prior to submitting a project permit application.
3. If an open record predecision hearing is required, the threshold determination
shall be issued at least 15 days before the open record predecision hearing (RCW
36.70B. 110(6)(b)).
4. The optional DNS process in WAC 197-11-355 may be used to indicate on the
notice of application that the lead agency is likely to issue a DNS. If this optional process
is used, a separate comment period on the DNS may not be required (refer to WAC 197-
11-355 (4)).
Section 4. Section 16.04.065 of the Bainbridge Island Municipal Code, is amended as
follows:
16.04.065 Purpose of this part and adoption by reference.
This part contains the rules for deciding whether a proposal has a "probable significant,
adverse environmental impact" requiring an environmental impact statement (EIS) to be
prepared. This part also contains rules for integrating SEPA environmental analysis with
project review and for evaluating the impacts of proposals not requiring an EIS. The city
adopts the following sections by reference, as supplemented in this part:
WAC
197-11-300
197-11-305
197-11-310
197-11-315
197-11-330
197-11-335
197-11-340
197-11-350
197-11-355
197-11-360
197-11-390
(Ord. 92-06
Purpose of this part.
Categorical exemptions.
Threshold determination required.
Environmental checklist.
Threshold determination process.
Additional information.
Determination of non-significance (DNS).
Mitigated DNS.
Optional DNS process.
Determination of significance (DS)/initiation of scoping.
Effect of threshold determination.
1, 1992)
Section 5.
follows:
Section 16.04.100 of the Bainbridge Island Municipal Code, is amended as
16.04.100 Mitigated DNS. Threshold Determination (DNS, Mitigated DNS, Optional
DNS and DS).
A. As provided in this section and in WAC 197-11-350, the responsible official may issue
a DNS based on conditions attached to the proposal by the responsible official or on
changes to, or clarifications of, the proposal made by the applicant.
B. Early Notice
1. An applicant may request in writing early notice of whether a DS is likely under
WAC 197-11-350. The request must:
a_ -1-. Follow submission of a permit application and environmental
checklist for a nonexempt proposal for which the city is lead agency; and
b_ g. Precede the city's actual threshold determination for the proposal.
C--:. 2. The responsible official should respond to the request for early notice within
15 working days. The response shall:
4-:. a._:. Be written;
g. b_ State whether the city currently considers issuance of a DS likely and,
if so, indicate the general or specific areas of concern that are leading the city to
consider a DS; and
~. c__. State that the applicant may change or clarify the proposal to mitigate
the indicated impacts, revising the environmental checklist and/or permit
application as necessary to reflect the changes or clarifications.
t~ C. As much as possible, the city should assist the applicant with identification of
impacts to the extent necessary to formulate mitigation measures.
ti D. When an applicant submits a changed or clarified proposal along with a revised or
amended environmental checklist, the city shall base its threshold determination on the
changed or clarified proposal and should make the determination within 15 days of
receiving the changed or clarified proposal:
1. If the city indicated specific mitigation measures in its response to the request
for early notice, and the applicant changed or clarified the proposal to include those
specific mitigation measures, the city shall issue and circulate a DNS under WAC 197-
11-340(2).
2. If the city indicated areas of concern, but did not indicate specific mitigation
measures that would allow it to issue a DNS, the city shall make the threshold
determination, issuing a DNS or DS as appropriate.
3. The applicant's proposed mitigation measures (clarifications, changes or
conditions) must be in writing and must be specific. For example, proposals to "control
noise" or "prevent stormwater.runoff" are inadequate, whereas proposals to "muffle
machinery to X decibel" or "construct 200-foot stormwater retention pond at Y location"
are adequate.
4. Mitigation measures which justify issuance of a mitigated DNS may be
incorporated in the DNS by reference to agency staff reports, studies or other documents..
t~ E. A mitigated DNS is issued under WAC 197-11-340(2), requiring a 1___4 15-day
comment period and public notice or issued under the Optional DNS process, WAC 197-
11-355.
G F. Mitigation measures incorporated in the mitigated DNS shall be deemed
conditions of approval of the permit decision and may be enforced in the same manner as
any term or condition of the permit, or enforced in any manner specifically prescribed by
the city. Failure to comply with the designated mitigation measures shall be grounds for
suspension and/or revocation of any issued license or permit.
t4 G. If the city's tentative decision on a permit or approval does not include mitigation
measures that were incorporated in a mitigated DNS for the proposal, the city should
evaluate the threshold determination to assure consistency with WAC 197-11-340 (3)(a)
(withdrawal of DNS).
H. Optional DNS process.
1. When the responsible official has a reasonable basis for determining significant
adverse environmental impacts are unlikely for a proposal, the city may use a single
integrated comment period to obtain comments on the notice of application and the likely
threshold determination for the proposal. If the process is used, a second comment period
will typically not be required when the DNS is issued.
2. If the city uses the optional process, the responsible official shall comply with
the requirements of WAC 197-11-355, combining the SEPA notice with the notice of
application and providin~ one 14 day comment period for the application and SEPA
determination.
I. The city's written response under subsection B, Early Notice, of this section shall
not be construed as a determination of significance. In addition, preliminary discussion of
clarifications or changes to a proposal, as opposed to a written request for early notice,
shall not bind the city to consider the clarifications or changes in its threshold
determination.
Section 6. Section 16.04.130 of the Bainbridge Island Municipal Code, is amended as
follows:
16.04.130 Public notice.
A. Whenever the city issues a DNS under WAC 197-11-340(2), WAC 197-11-355 or
a DS under WAC 197-11-360(3) the city shall give public notice as follows:
1. When possible, public notice requirements under SEPA should be combined
with notice requirements for an application. This notice shall state whether a DS or a
DNS was issued and when all comments are due. (For example, if the timing for notice
requirements for a subdivision or construction project coincide with the timing
requirements under SEPA, then the city shall combine information on the application
notice and have one time frame for all comments.) The city will use whichever notice
requirements are greater except when issuing a DNS under the Optional DNS process, in
which case the requirements of WAC 197-355 shall be met.
2. When public notice requirements for a license or permit do not coincide with
SEPA notice requirements tThe city shall give notice of a t4~e DNS or DS by using all of
the following means:
a. Posting the property for site specific proposals or mailing to property
owners within 300 feet of the proposal if the project is site specific, or both, as
determined by the responsible official. For posting, the applicant shall supply and
erect an eight-square-foot notice board on all site specific projects on all adjacent
rights-of-way or in accordance with requirements set forth by the office of
planning and community development; and
b. Publishing notice in the city's legal newspaper for two consocutivc
wocks; and
c. Notifying public or private groups which have expressed interest in
writing for a certain proposal or in the type of proposal being considered; and
d. Sending notice to agencies as directed by the responsible official (either
general lists or lists for specific proposals for subject areas); and
e. Any other reasonable method calculated to inform the public and other
agencies or required by statute or ordinance, as determined by the responsible
official.
3. Whenever the city issues a DS under WAC 197-11-360(3), the city shall state
the scoping procedure for the proposal in the DS as required in WAC 197-11-408
and in the public notice.
B. Whenever the city issues a DEIS under WAC 197-11-455(5) or a SEIS under
WAC 197-11-620, notice of the availability of those documents shall be given by
indicating the availability of the DEIS in any public notice required for a nonexempt
license and all of the following methods:
1. Posting the property for site specific proposals or mailing to property owners
within 300 feet of the proposal, if the project is site specific, or both, as determined by the
responsible official. For posting, the applicant shall supply and erect an eight-square-foot
notice board on all site specific projects in accordance with requirements set forth by the
office of planning and community development; and
2. Publishing notice in the city's legal newspaper for two consoCutivc weeks; and
3. Notifying public or private groups which have expressed interest in a certain
proposal or in the type of proposal being considered; and
4. Sending notice to agency mailing lists (either general lists or lists for specific
proposals for subject areas); and
5. Any other reasonable method calculated to inform the public and other agencies
or required by statute or ordinance, as determined by the responsible official.
C. Whenever possible, the city shall integrate the public notice required under this
section with existing notice procedures for the city's nonexempt permit(s) or approval(s)
required for the proposal.
D. Notice of public hearings shall be published no later than 15 days before the
hearing. Notices shall be mailed to owners of property within 300 feet of the site and
posted as described in this section.
E The city shall require an applicant to complete the public notice requirements for
the applicant's proposal at the applicant's expense, compensate the city for costs of
carrying out the public notice requirements on behalf of the applicant, or provide services
or materials to assist the city in carrying out the public notice requirements.
Section 7.
follows:
Section 16.04.170 of the Bainbridge Island Municipal Code, is amended as
16.04.170 Appeals.
A. Any person may appeal the issuance of:
1. A determination of nonsignificance;
2. A determination of significance;
3. A final environmental impact statement; and
4. Any decision of a non-elected official which conditions or denies a proposal or
action on the basis of SEPA, except for permits or variances issued pursuant to Chapter
16.12. No other SEPA appeal shall be allowed.
B. Except for an appeal of a determination of significance (DS), there shall be no
more than one administrative SEPA appeal proceeding. An appeal of a dctcrmination of
nonsignificancc will bc heard at thc public hearing for the final rocommcndation or
decision of thc underlying land usc application.
C. An appeal must be filed in writing with the responsible official within 14 calendar
days from the date of the determination, or 21 calendar days from the date of the
determination, when the determination is subject to a SEPA public comment period as
required under WAC 197-11-340. The appeal shall identify the decision, contain a
summary of the grounds for the appeal and be accompanied by an appeal fee in an
amount established by resolution of the city council. Following receipt of the appeal and
the fee, the responsible official shall transmit a copy of the appeal to the hearing
examiner.
D. The appeal shall be heard by the hearing examiner at a public hearing, notice of
which shall be published once and mailed to the appellant and delivered to the
responsible official at least 15 days before the public hearing.
E. At the public appeal hearing, the hearing examiner shall consider all relevant
evidence and take testimony on oath. The public hearing shall be tape recorded. Upon
completion of the public hearing, the hearing examiner shall enter findings of fact,
conclusions of law and a decision, giving substantial weight to the decision of the
responsible official.
F. The decision of the hearing examiner is final unless an appeal is filed with the
superior court.
G. The city shall give official notice under WAC 197-11-680(5) whenever it issues a
permit or approval for which a statute or ordinance establishes a time limit for
commencing judicial appeal. If there is no time period for appealing the underlying
government action and a notice of action under RCW 43.21 C.080 is used, appeal shall be
commenced within the time period specified by RCW 43.21 C.080.
Section 8.
follows:
Section 16.04.175 of the Bainbridge Island Municipal Code, is amended as
16.04.175 Purpose of this part and adoption by reference.
This part contains uniform usage and definitions of terms under SEPA. The city adopts
the following sections by reference, as supplemented by Section 16.04.040:
WAC
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.
197-11-721 Closed record appeal
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 non-significance (DNS).
197-11-736 Determination of significance (DS).
197-11-738 EIS.
197-1.1-740 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 Non-project.
197-11-775 Open record hearing.
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.
Section 9. Relationship to other code provisions. To the extent that the requirements set
forth in the provisions of this ordinance amending sections to Chapter 16.04 of the
Bainbridge Island Municipal Code are inconsistent with requirements set forth in other City
code provisions, the requirements set forth in this ordinance shall supersede the
requirements in the other City code provisions.
Section 10. This ordinance shall take effect on and be in force five days from and after its
passage, approval, and publication as required by law.
PASSED by the City Council this ~ ~day offi~ 1998.
APPROVED by the Mayor this ,t/L7-''fi' day o~, 1998.
Dwight Sutton, Mayo;' -
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ATTEST/AUTHENTIC ATE:
S/ue Kasper, City Clerk
APPROVED AS TO FORM:
Rod P. Kaseguma, City Attorney
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NUMBER:
/ ,-/, / q'~g
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