CCLME.ORG - Sepa rules Department of Ecology
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(continued)

(8) "Supporting record, analyses, and materials."

(a) The integrated GMA document shall contain a list of the principal analytical documents and other materials (such as meeting minutes, maps, models, tapes or videos) that have been prepared, received, or used in developing the GMA action (see WAC 197-11-090). These materials shall be considered to be incorporated by reference under SEPA and part of the supporting record for SEPA compliance, and their contents need not be further described as required in WAC 197-11-635. Annotated lists are encouraged, but not required, to assist current and future reviewers.

(b) Materials in the supporting record should enable agencies and members of the public to identify and review the planning basis for the conclusions and analysis presented in the integrated GMA document as provided in the "procedural criteria" for preparing plan documents.



[Statutory Authority: RCW 43.21C.110. 95-07-023 (Order 94-22), § 197-11-235, filed 3/6/95, effective 4/6/95.]




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197-11-238
Monitoring.
Monitoring information is important to maintain the usefulness of the environmental analysis in plans and development regulations for project-level review and to update plans under chapter 36.70A RCW. GMA counties/cities are encouraged to establish a process for monitoring the cumulative impacts of permit decisions and conditions, and to use that data to update the information about existing conditions for the built and natural environment. If a monitoring process is developed, it should be established at the time information on existing conditions is developed. Annual or periodic reports summarizing the data and documenting trends are encouraged.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-238, filed 10/10/97, effective 11/10/97.]




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197-11-250
SEPA/Model Toxics Control Act integration.
(1) WAC 197-11-253 through 197-11-268 integrate the procedural requirements and documents of this chapter with those required under the Model Toxics Control Act (MTCA), chapter 70.105D RCW, and chapter 173-340 WAC.

(2) Both MTCA and SEPA provide opportunities for early public review of a proposal. The following sections contain procedures to combine the MTCA and SEPA processes to reduce duplication and improve public participation. These sections supplement the other requirements of this chapter. To the extent there is a conflict, these sections supersede any conflicting provisions of this chapter.

(3) WAC 197-11-253 through 197-11-268 apply to remedial actions as defined in RCW 70.105D.020(12) and conducted by ecology or by a potentially liable person (PLP) under an order, agreed order, or consent decree under MTCA. These sections do not apply to independent remedial actions; rather, the remainder of this chapter applies to independent remedial actions that are subject to SEPA.

(4) When the remedial action is part of a development proposal, the procedures in WAC 197-11-256 through 197-11-268 shall be used to combine the procedural requirements of SEPA and MTCA, to the extent practicable.

(5) To effectively integrate the procedural requirements of SEPA and MTCA, the SEPA elements of the environment that could be impacted need to be identified as early in the MTCA process as possible. Early consideration of SEPA facilitates identification of study areas prior to conducting the remedial investigation/ feasibility study (RI/FS) and effective, timely integration of SEPA and MTCA documents. The threshold determination may be delayed until later in the MTCA process.

(6) WAC 197-11-256 through 197-11-268 do not change the categorical exemption for information collection in WAC 197-11-800(17) or the emergency exemption in WAC 197-11-880.

(7) Interim actions (WAC 173-340-430) conducted as part of a remedial action conducted by ecology, or by a potentially liable person under an order, agreed order, or consent decree under MTCA are governed by WAC 197-11-268.



[Statutory Authority: RCW 43.21A.090, chapter 43.21C RCW, RCW 43.21C.035, 43.21C.037, 43.21C.038, 43.21C.0381, 43.21C.0382, 43.21C.0383, 43.21C.110, 43.21C.222. 03-16-067 (Order 02-12), § 197-11-250, filed 8/1/03, effective 9/1/03. Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-250, filed 3/31/95, effective 5/1/95.]




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197-11-253
SEPA lead agency for MTCA actions.
(1) The lead agency should be determined as soon as possible after ecology has identified the PLPs for a facility and must be identified prior to issuing an order, agreed order, or consent decree, or prior to issuing the scope of work for an ecology conducted remedial action.

(2) Ecology will be lead agency for any remedial action conducted by ecology, or by a PLP under an order, agreed order, or consent decree, except for the situations described in subsections (3) and (4) of this section.

(3) Except as provided in subsection (4) of this section, an agency that will be conducting a remedial action under a MTCA order, agreed order, or consent decree will be lead agency provided there is no objection by another agency determined by ecology to be a PLP for the facility.

(a) If there are multiple agency PLPs, the agencies shall by agreement determine which agency will be lead agency. If the agencies cannot reach agreement, the agency that owns the largest acreage within the facility shall be lead agency. In any other instance where the agencies cannot agree, ecology will be lead agency.

(b) Prior to making a threshold determination, the lead agency may:

(i) Transfer lead agency status to ecology;

(ii) Invite ecology to share lead agency status; or

(iii) Retain lead agency status.

(4) When a remedial action is part of a development proposal, the lead agency will be determined using the lead agency criteria in WAC 197-11-922 through 197-11-946. The lead agency may contact ecology prior to making a threshold determination to invite ecology to share lead agency status for that portion of the environmental analysis related to the remedial action (WAC 197-11-944).

(5) If an agency other than ecology is lead agency, the lead agency shall provide ecology an opportunity to review the environmental documents prior to providing public notice of the documents. Any environmental documents must address the remedial action which ecology anticipates will be necessary for the facility.

(6) When an agency other than ecology is lead agency, and the SEPA and MTCA documents are issued together with one public comment period, ecology and the lead agency will by agreement decide who receives the comment letters and how copies of the comment letters will be distributed to the other agency.



[Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-253, filed 3/31/95, effective 5/1/95.]




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197-11-256
Preliminary evaluation.
(1) Prior to conducting a RI/FS under MTCA (WAC 173-340-350), the lead agency shall evaluate the available information on the hazardous substances at the facility and take one of the following steps:

(a) Make a preliminary decision that the remedial action is unlikely to have a probable significant adverse environmental impact and proceed according to WAC 197-11-259.

(b) Decide that all or part of the remedial action or its impacts are not sufficiently definite to make a preliminary determination and proceed with early scoping prior to making a threshold determination, following the procedures in WAC 197-11-265.

(c) Decide the remedial action will have a probable significant adverse environmental impact and issue a determination of significance following the procedures in WAC 197-11-262.

(2) The threshold determination shall be made at the point at which adequate information is available to evaluate the environmental impacts of the remedial action, but no later than the draft cleanup action plan.



[Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-256, filed 3/31/95, effective 5/1/95.]




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197-11-259
Determination of nonsignificance for MTCA remedial action.
(1) If the remedial action will not have a probable significant adverse environmental impact, a DNS shall be issued no earlier than the RI/FS and no later than the draft cleanup action plan. If the lead agency made a preliminary decision under WAC 197-11-256 (1)(a) that a DS was unlikely, prior to issuing a DNS the responsible official shall consider any additional information about adverse environmental impacts generated during the RI/FS process.

(2) The public comment period on the DNS shall be the same as the comment period on the MTCA document, provided that for proposals listed in WAC 197-11-340 (2)(a) the comment period is no less than fourteen days prior to the effective date of the MTCA document. One public notice shall be used to announce the availability of both the DNS and MTCA document, consistent with the requirements of WAC 173-340-600 and 197-11-340.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-259, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-259, filed 3/31/95, effective 5/1/95.]




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197-11-262
Determination of significance and EIS for MTCA remedial actions.
(1) The following applies to remedial actions that will have a probable significant adverse environmental impact.

(2) If the preliminary evaluation in WAC 197-11-256 results in a determination of significance, the scoping notice may be combined with either the MTCA public review process for the scope of work for an ecology conducted RI/FS (WAC 173-340-600 (12)(a)), or with the public review process for the order, consent decree or agreed order covering an RI/FS.

(3) If a determination of significance is issued later in the MTCA process and early scoping has been done under WAC 197-11-265, no additional SEPA scoping is required. If early scoping has not been done, scoping shall be completed consistent with WAC 197-11-408 or 197-11-410.

(4) The EIS may be integrated with the RI/FS. The format of the document shall be flexible as allowed by WAC 197-11-640, provided:

(a) The fact sheet shall be the first section (WAC 197-11-430(1));

(b) A summary shall be included which meets the requirements in WAC 197-11-440(4); and

(c) Reasonable alternatives as defined in WAC 197-11-786 and 197-11-440(5) (including the no action alternative), significant adverse impacts, mitigation measures and any unavoidable impacts are clearly identified.

(5) If the EIS and RI/FS are not combined, the EIS requirements of WAC 197-11-430 shall apply.

(6) The draft EIS shall be issued no sooner than the issuance of the RI/FS and not later than issuance of the draft cleanup action plan. The final EIS shall be issued no sooner than the issuance of the draft cleanup action plan and no later than the final cleanup action plan, notwithstanding the requirements of WAC 197-11-460(5).



[Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-262, filed 3/31/95, effective 5/1/95.]




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197-11-265
Early scoping for MTCA remedial actions.
(1) The purpose of early scoping is to identify possible environmental issues prior to making a threshold determination. If early scoping is used and a determination of significance is issued later in the process, no additional SEPA scoping is required.

(2) If, after the preliminary evaluation provided in WAC 197-11-256, the lead agency decides there is insufficient information to make a preliminary determination, pursuant to WAC 197-11-256 (1)(b), the lead agency shall invite the public to comment on the proposed study areas. This early scoping will typically be combined with either the MTCA public review process for the scope of work for an ecology conducted RI/FS (WAC 173-340-600 (12)(a)), or the public review process for the order, consent decree, or agreed order for a RI/FS.

(3) The lead agency shall evaluate the comments received during the early scoping process and take one of the following actions:

(a) Determine the project will have a probable significant adverse environmental impact, issue a determination of significance and begin preparation of the EIS pursuant to WAC 197-11-262.

(b) Make a preliminary decision that there will be no probable significant adverse environmental impacts, and proceed as described in WAC 197-11-259.

(c) Determine there is still insufficient information to evaluate the environmental impacts of the remedial action, and proceed with the RI/FS. A threshold determination shall be made pursuant to WAC 197-11-259 or 197-11-262 as appropriate.



[Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-265, filed 3/31/95, effective 5/1/95.]




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197-11-268
MTCA interim actions.
The following shall apply when an interim action (WAC 173-340-430) is conducted as part of a remedial action conducted by ecology, or by a potentially liable person under an order, agreed order, or consent decree under MTCA.

(1) If the interim action will not have a probable significant adverse environmental impact, the lead agency shall issue a DNS which may be combined with the public notice of the interim action, provided that for proposals listed in WAC 197-11-340 (2)(a) the comment period is no less than fifteen days prior to the effective date of the MTCA document.

(2) If the interim action will have a probable significant adverse environmental impact, the lead agency shall issue a determination of significance. If early scoping has already been performed for the facility under WAC 197-11-265, no additional scoping is required. If early scoping has not been performed, the lead agency shall issue a DS and scoping notice, allowing at least a twenty-one day advance comment period (WAC 197-11-408).

(3) The final EIS shall be issued no later than the issuance of the interim action report or the issuance of an order, agreed order, or decree.



[Statutory Authority: RCW 43.21C.110. 95-08-041 (Order 94-22), § 197-11-268, filed 3/31/95, effective 5/1/95.]




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197-11-300
Purpose of this part.
This part provides rules for:

(1) Administering categorical exemptions for proposals that would not have probable significant adverse impacts;

(2) Deciding whether a proposal has a probable significant adverse impact and thus requires an EIS (the threshold determination);

(3) Providing a way to review and mitigate nonexempt proposals through the threshold determination;

(4) Integrating the environmental analysis required by SEPA into early planning to ensure appropriate consideration of SEPA's policies and to eliminate duplication and delay; and

(5) Integrating the environmental analysis required by SEPA into the project review process.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-300, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-300, filed 2/10/84, effective 4/4/84.]




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197-11-305
Categorical exemptions.
(1) If a proposal fits within any of the provisions in Part Nine of these rules, the proposal shall be categorically exempt from threshold determination requirements (WAC 197-11-720) except as follows:

(a) The proposal is not exempt under WAC 197-11-908, critical areas.

(b) The proposal is a segment of a proposal that includes:

(i) A series of actions, physically or functionally related to each other, some of which are categorically exempt and some of which are not; or

(ii) A series of exempt actions that are physically or functionally related to each other, and that together may have a probable significant adverse environmental impact in the judgment of an agency with jurisdiction. If so, that agency shall be the lead agency, unless the agencies with jurisdiction agree that another agency should be the lead agency. Agencies may petition the department of ecology to resolve disputes (WAC 197-11-946).

For such proposals, the agency or applicant may proceed with the exempt aspects of the proposals, prior to conducting environmental review, if the requirements of WAC 197-11-070 are met.

(2) An agency is not required to document that a proposal is categorically exempt. Agencies may note on an application that a proposal is categorically exempt or place such a determination in agency files.



[Statutory Authority: RCW 43.21C.110. 95-07-023 (Order 94-22), § 197-11-305, filed 3/6/95, effective 4/6/95; 84-05-020 (Order DE 83-39), § 197-11-305, filed 2/10/84, effective 4/4/84.]




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197-11-310
Threshold determination required.
(1) A threshold determination is required for any proposal which meets the definition of action and is not categorically exempt, subject to the limitations in WAC 197-11-600(3) concerning proposals for which a threshold determination has already been issued, or statutorily exempt as provided in chapter 43.21C RCW. A threshold determination is not required for a planned action (refer to WAC 197-11-164 through197-11-172 ).

(2) The responsible official of the lead agency shall make the threshold determination, which shall be made as close as possible to the time an agency has developed or is presented with a proposal (WAC 197-11-784). If the lead agency is a GMA county/city, that agency must meet the timing requirements in subsection (6) of this section.

(3) The responsible official shall make a threshold determination no later than ninety days after the application and supporting documentation are determined to be complete. The applicant may request an additional thirty days for the threshold determination (RCW 43.21C.033).

(4) The time limit in subsection (3) of this section shall not apply to a county/city that:

(a) By ordinance adopted prior to April 1, 1992, has adopted procedures to integrate permit and land use decisions with SEPA requirements; or

(b) Is planning under RCW 36.70A.040 (GMA) and is subject to the requirements of subsection (6) of this section.

(5) 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).

(6) When a GMA county/city with an integrated project review process under RCW 36.70B.060 is lead agency for a project, the following timing requirements apply:

(a) 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 being 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.

(b) Nothing in this section prevents a lead agency, when it is a project proponent or is funding a project, from conducting its review under SEPA or from allowing appeals of procedural determinations prior to submitting a project permit application.

(c) If an open record predecision hearing is required, the threshold determination shall be issued at least fifteen days before the open record predecision hearing (RCW 36.70B.110 (6)(b)).

(d) 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)).



[Statutory Authority: RCW 43.21A.090, chapter 43.21C RCW, RCW 43.21C.035, 43.21C.037, 43.21C.038, 43.21C.0381, 43.21C.0382, 43.21C.0383, 43.21C.110, 43.21C.222. 03-16-067 (Order 02-12), § 197-11-310, filed 8/1/03, effective 9/1/03. Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-310, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-310, filed 2/10/84, effective 4/4/84.]




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197-11-315
Environmental checklist.
(1) Agencies shall use the environmental checklist substantially in the form found in WAC 197-11-960 to assist in making threshold determinations for proposals, except for:

(a) Public proposals on which the lead agency has decided to prepare its own EIS; or

(b) Proposals on which the lead agency and applicant agree an EIS will be prepared; or

(c) Projects which are proposed as planned actions (see subsection (2) of this section).

(2) For projects submitted as planned actions under WAC 197-11-164, a GMA county/city shall use the existing environmental checklist or modify the environmental checklist form to fulfill the purposes outlined in WAC 197-11-172(1), notwithstanding the requirements of WAC 197-11-906(4).

If the GMA county/city chooses to modify the existing environmental checklist, the modified form shall be submitted to the department of ecology to allow at least a thirty-day review prior to use. The department shall notify the GMA county/city within thirty days of receipt if it has any objections to the modified form and the general nature of the objections. If the department objects, the modified form shall not be used until the GMA county/city and the department have reached agreement.

(3) Agencies may use an environmental checklist whenever it would assist in their planning and decision making, but shall only require an applicant to prepare a checklist under SEPA if a checklist is required by subsection (1) of this section.

(4) The lead agency shall prepare the checklist or require an applicant to prepare the checklist.

(5) The items in the environmental checklist are not weighted. The mention of one or many adverse environmental impacts does not necessarily mean that the impacts are significant. Conversely, a probable significant adverse impact on the environment may result in the need for an EIS.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-315, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-315, filed 2/10/84, effective 4/4/84.]




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197-11-330
Threshold determination process.
An EIS is required for proposals for legislation and other major actions significantly affecting the quality of the environment. The lead agency decides whether an EIS is required in the threshold determination process, as described below.

(1) In making a threshold determination, the responsible official shall:

(a) Review the environmental checklist, if used:

(i) Independently evaluating the responses of any applicant and indicating the result of its evaluation in the DS, in the DNS, or on the checklist; and

(ii) Conducting its initial review of the environmental checklist and any supporting documents without requiring additional information from the applicant.

(b) Determine if the proposal is likely to have a probable significant adverse environmental impact, based on the proposed action, the information in the checklist (WAC 197-11-960), and any additional information furnished under WAC 197-11-335 and 197-11-350; and

(c) Consider mitigation measures which an agency or the applicant will implement as part of the proposal, including any mitigation measures required by development regulations, comprehensive plans, or other existing environmental rules or laws.

(2) In making a threshold determination, the responsible official should determine whether:

(a) All or part of the proposal, alternatives, or impacts have been analyzed in a previously prepared environmental document, which can be adopted or incorporated by reference (see Part Six).

(b) Environmental analysis would be more useful or appropriate in the future in which case, the agency shall commit to timely, subsequent environmental review, consistent with WAC 197-11-055 through 197-11-070 and Part Six.

(3) In determining an impact's significance (WAC 197-11-794), the responsible official shall take into account the following, that:

(a) The same proposal may have a significant adverse impact in one location but not in another location;

(b) The absolute quantitative effects of a proposal are also important, and may result in a significant adverse impact regardless of the nature of the existing environment;

(c) Several marginal impacts when considered together may result in a significant adverse impact;

(d) For some proposals, it may be impossible to forecast the environmental impacts with precision, often because some variables cannot be predicted or values cannot be quantified.

(e) A proposal may to a significant degree:

(i) Adversely affect environmentally sensitive or special areas, such as loss or destruction of historic, scientific, and cultural resources, parks, prime farmlands, wetlands, wild and scenic rivers, or wilderness;

(ii) Adversely affect endangered or threatened species or their habitat;

(iii) Conflict with local, state, or federal laws or requirements for the protection of the environment; and

(iv) Establish a precedent for future actions with significant effects, involves unique and unknown risks to the environment, or may affect public health or safety.

(4) If after following WAC 197-11-080 and 197-11-335 the lead agency reasonably believes that a proposal may have a significant adverse impact, an EIS is required.

(5) A threshold determination shall not balance whether the beneficial aspects of a proposal outweigh its adverse impacts, but rather, shall consider whether a proposal has any probable significant adverse environmental impacts under the rules stated in this section. For example, proposals designed to improve the environment, such as sewage treatment plants or pollution control requirements, may also have significant adverse environmental impacts.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-330, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-330, filed 2/10/84, effective 4/4/84.]




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197-11-335
Additional information.
The lead agency shall make its threshold determination based upon information reasonably sufficient to evaluate the environmental impact of a proposal (WAC 197-11-055(2) and 197-11-060(3)). The lead agency may take one or more of the following actions if, after reviewing the checklist, the agency concludes that there is insufficient information to make its threshold determination:

(1) Require an applicant to submit more information on subjects in the checklist;

(2) Make its own further study, including physical investigations on a proposed site;

(3) Consult with other agencies, requesting information on the proposal's potential impacts which lie within the other agencies' jurisdiction or expertise (agencies shall respond in accordance with WAC 197-11-550); or

(4) Decide that all or part of the action or its impacts are not sufficiently definite to allow environmental analysis and commit to timely, subsequent environmental analysis, consistent with WAC 197-11-055 through 197-11-070.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-335, filed 2/10/84, effective 4/4/84.]




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197-11-340
Determination of nonsignificance (DNS).
(1) If the responsible official determines there will be no probable significant adverse environmental impacts from a proposal, the lead agency shall prepare and issue a determination of nonsignificance (DNS) substantially in the form provided in WAC 197-11-970. If an agency adopts another environmental document in support of a threshold determination (Part Six), the notice of adoption (WAC 197-11-965) and the DNS shall be combined or attached to each other.

(2) When a DNS is issued for any of the proposals listed in (2)(a), the requirements in this subsection shall be met. The requirements of this subsection do not apply to a DNS issued when the optional DNS process in WAC 197-11-355 is used.

(a) An agency shall not act upon a proposal for fourteen days after the date of issuance of a DNS if the proposal involves:

(i) Another agency with jurisdiction;

(ii) Demolition of any structure or facility not exempted by WAC 197-11-800 (2)(f) or 197-11-880;

(iii) Issuance of clearing or grading permits not exempted in Part Nine of these rules;

(iv) A DNS under WAC 197-11-350 (2), (3) or 197-11-360(4); or

(v) A GMA action.

(b) The responsible official shall send the DNS and environmental checklist to agencies with jurisdiction, the department of ecology, and affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal, and shall give notice under WAC 197-11-510.

(c) Any person, affected tribe, or agency may submit comments to the lead agency within fourteen days of the date of issuance of the DNS.

(d) The date of issue for the DNS is the date the DNS is sent to the department of ecology and agencies with jurisdiction and is made publicly available.

(e) An agency with jurisdiction may assume lead agency status only within this fourteen-day period (WAC 197-11-948).

(f) The responsible official shall reconsider the DNS based on timely comments and may retain or modify the DNS or, if the responsible official determines that significant adverse impacts are likely, withdraw the DNS or supporting documents. When a DNS is modified, the lead agency shall send the modified DNS to agencies with jurisdiction.

(3)(a) The lead agency shall withdraw a DNS if:

(i) There are substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts;

(ii) There is significant new information indicating, or on, a proposal's probable significant adverse environmental impacts; or

(iii) The DNS was procured by misrepresentation or lack of material disclosure; if such DNS resulted from the actions of an applicant, any subsequent environmental checklist on the proposal shall be prepared directly by the lead agency or its consultant at the expense of the applicant.

(b) Subsection (3)(a)(ii) shall not apply when a nonexempt license has been issued on a private project.

(c) If the lead agency withdraws a DNS, the agency shall make a new threshold determination and notify other agencies with jurisdiction of the withdrawal and new threshold determination. If a DS is issued, each agency with jurisdiction shall commence action to suspend, modify, or revoke any approvals until the necessary environmental review has occurred (see also WAC 197-11-070).



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-340, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 95-07-023 (Order 94-22), § 197-11-340, filed 3/6/95, effective 4/6/95; 84-05-020 (Order DE 83-39), § 197-11-340, filed 2/10/84, effective 4/4/84.]




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197-11-350
Mitigated DNS.
The purpose of this section is to allow clarifications or changes to a proposal prior to making the threshold determination.

(1) In making threshold determinations, an agency may consider mitigation measures that the agency or applicant will implement.

(2) After submission of an environmental checklist and prior to the lead agency's threshold determination on a proposal, an applicant may ask the lead agency to indicate whether it is considering a DS. If the lead agency indicates a DS is likely, the applicant may clarify or change features of the proposal to mitigate the impacts which led the agency to consider a DS likely. The applicant shall revise the environmental checklist as may be necessary to describe the clarifications or changes. The lead agency shall make its threshold determination based upon the changed or clarified proposal. If a proposal continues to have a probable significant adverse environmental impact, even with mitigation measures, an EIS shall be prepared.

(3) Whether or not an applicant requests early notice under subsection (2), if the lead agency specifies mitigation measures on an applicant's proposal that would allow it to issue a DNS, and the proposal is clarified, changed, or conditioned to include those measures, the lead agency shall issue a DNS.

(4) Environmental documents need not be revised and resubmitted if the clarifications or changes are stated in writing in documents that are attachments to, or incorporate by reference, the documents previously submitted. An addendum may be used, see Part Six.

(5) Agencies may clarify or change features of their own proposal, and may specify mitigation measures in their DNSs, as a result of comments by other agencies or the public or as a result of additional agency planning.

(6) An agency's indication under this section that a DS appears likely shall not be construed as a determination of significance. Likewise, the preliminary discussion of clarifications or changes to a proposal shall not bind the lead agency to a mitigated DNS.

(7) Agencies may specify procedures for enforcement of mitigation measures in their agency SEPA procedures.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-350, filed 2/10/84, effective 4/4/84.]




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197-11-355
Optional DNS process.
(1) If a GMA county/city with an integrated project review process (RCW 36.70B.060) is lead agency for a proposal and has a reasonable basis for determining significant adverse environmental impacts are unlikely, it may use a single integrated comment period to obtain comments on the notice of application and the likely threshold determination for the proposal. If this process is used, a second comment period will typically not be required when the DNS is issued (refer to subsection (4) of this section).

(2) If the lead agency uses the optional process specified in subsection (1) of this section, the lead agency shall:

(a) State on the first page of the notice of application that it expects to issue a DNS for the proposal, and that:

(i) The optional DNS process is being used;

(ii) This may be the only opportunity to comment on the environmental impacts of the proposal;

(iii) The proposal may include mitigation measures under applicable codes, and the project review process may incorporate or require mitigation measures regardless of whether an EIS is prepared; and

(iv) A copy of the subsequent threshold determination for the specific proposal may be obtained upon request (in addition, the lead agency may choose to maintain a general mailing list for threshold determination distribution).

(b) List in the notice of application the conditions being considered to mitigate environmental impacts, if a mitigated DNS is expected;

(c) Comply with the requirements for a notice of application and public notice in RCW 36.70B.110; and

(d) Send the notice of application and environmental checklist to:

(i) Agencies with jurisdiction, the department of ecology, affected tribes, and each local agency or political subdivision whose public services would be changed as a result of implementation of the proposal; and

(ii) Anyone requesting a copy of the environmental checklist for the specific proposal (in addition, the lead agency may choose to maintain a general mailing list for checklist distribution).

(3) If the lead agency indicates on the notice of application that a DNS is likely, an agency with jurisdiction may assume lead agency status during the comment period on the notice of application (WAC 197-11-948).

(4) The responsible official shall consider timely comments on the notice of application and either:

(a) Issue a DNS or mitigated DNS with no comment period using the procedures in subsection (5) of this section;

(b) Issue a DNS or mitigated DNS with a comment period using the procedures in subsection (5) of this section, if the lead agency determines a comment period is necessary;

(c) Issue a DS; or

(d) Require additional information or studies prior to making a threshold determination.

(5) If a DNS or mitigated DNS is issued under subsection (4)(a) of this section, the lead agency shall send a copy of the DNS or mitigated DNS to the department of ecology, agencies with jurisdiction, those who commented, and anyone requesting a copy. A copy of the environmental checklist need not be recirculated.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-355, filed 10/10/97, effective 11/10/97.]




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197-11-360
Determination of significance (DS)/initiation of scoping.
(1) If the responsible official determines that a proposal may have a probable significant adverse environmental impact, the responsible official shall prepare and issue a determination of significance (DS) substantially in the form provided in WAC 197-11-980. The DS shall describe the main elements of the proposal, the location of the site, if a site-specific proposal, and the main areas the lead agency has identified for discussion in the EIS. A copy of the environmental checklist may be attached.

(2) If an agency adopts another environmental document in support of a threshold determination (Part Six), the notice of adoption (WAC 197-11-965) and the DS shall be combined or attached to each other.

(3) The responsible official shall put the DS in the lead agency's file and shall commence scoping (WAC 197-11-408) by circulating copies of the DS to the applicant, agencies with jurisdiction and expertise, if any, affected tribes, and to the public. Notice shall be given under WAC 197-11-510. The lead agency is not required to scope if the agency is adopting another environmental document for the EIS or is preparing a supplemental EIS.

(4) If at any time after the issuance of a DS a proposal is changed so, in the judgment of the lead agency, there are no probable significant adverse environmental impacts, the DS shall be withdrawn and a DNS issued instead. The DNS shall be sent to all who commented on the DS. A proposal shall not be considered changed until all license applications for the proposal are revised to conform to the changes or other binding commitments made by agencies or by applicants.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-360, filed 2/10/84, effective 4/4/84.]




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197-11-390
Effect of threshold determination.
(1) When the responsible official makes a threshold determination, it is final and binding on all agencies, subject to the provisions of this section and WAC 197-11-340, 197-11-360, and Part Six.

(2) The responsible official's threshold determination:

(a) For proposals listed in WAC 197-11-340(2), shall not be final until fourteen days after issuance.

(b) Shall not apply if another agency with jurisdiction assumes lead agency status under WAC 197-11-948.

(c) Shall not apply when withdrawn by the responsible official under WAC 197-11-340 or 197-11-360.

(d) Shall not apply when reversed on appeal.

(3) Regardless of any appeals, a DS or DNS issued by the responsible official may be considered final for purposes of other agencies' planning and decision making unless subsequently changed, reversed, or withdrawn.



[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-390, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-390, filed 2/10/84, effective 4/4/84.]




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197-11-400
Purpose of EIS.
(1) The primary purpose of an environmental impact statement is to ensure that SEPA's policies are an integral part of the ongoing programs and actions of state and local government.

(2) An EIS shall provide impartial discussion of significant environmental impacts and shall inform decision makers and the public of reasonable alternatives, including mitigation measures, that would avoid or minimize adverse impacts or enhance environmental quality.

(3) Environmental impact statements shall be concise, clear, and to the point, and shall be supported by the necessary environmental analysis. The purpose of an EIS is best served by short documents containing summaries of, or reference to, technical data and by avoiding excessively detailed and overly technical information. The volume of an EIS does not bear on its adequacy. Larger documents may even hinder the decision making process.

(4) The EIS process enables government agencies and interested citizens to review and comment on proposed government actions, including government approval of private projects and their environmental effects. This process is intended to assist the agencies and applicants to improve their plans and decisions, and to encourage the resolution of potential concerns or problems prior to issuing a final statement. An environmental impact statement is more than a disclosure document. It shall be used by agency officials in conjunction with other relevant materials and considerations to plan actions and make decisions.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-400, filed 2/10/84, effective 4/4/84.]




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197-11-402
General requirements.
Agencies shall prepare environmental impact statements as follows:

(1) EISs need analyze only the reasonable alternatives and probable adverse environmental impacts that are significant. Beneficial environmental impacts or other impacts may be discussed.

(2) The level of detail shall be commensurate with the importance of the impact, with less important material summarized, consolidated, or referenced.

(3) Discussion of insignificant impacts is not required; if included, such discussion shall be brief and limited to summarizing impacts or noting why more study is not warranted.

(4) Description of the existing environment and the nature of environmental impacts shall be limited to the affected environment and shall be no longer than is necessary to understand the environmental consequences of the alternatives, including the proposal.

(5) EISs shall be no longer than necessary to comply with SEPA and these rules. Length should relate first to potential environmental problems and then to the size or complexity of the alternatives, including the proposal.

(6) The basic features and analysis of the proposal, alternatives, and impacts shall be discussed in the EIS and shall be generally understood without turning to other documents; however, an EIS is not required to include all information conceivably relevant to a proposal, and may be supplemented by appendices, reports, or other documents in the agency's record.

(7) Agencies shall reduce paperwork and the accumulation of background data by adopting or incorporating by reference, existing, publicly available environmental documents, wherever possible.

(8) Agencies shall prepare EISs concurrently with and coordinated with environmental studies and related surveys that may be required for the proposal under other laws, when feasible.

(9) The range of alternative courses of action discussed in EISs shall encompass those to be considered by the decision maker.

(10) EISs shall serve as the means of assessing the environmental impact of proposed agency action, rather than justifying decisions already made.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-402, filed 2/10/84, effective 4/4/84.]




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197-11-405
EIS types.
(1) Draft and final environmental impact statements (EISs) shall be prepared; draft and final supplemental EISs may be prepared.

(2) A draft EIS (DEIS) allows the lead agency to consult with members of the public, affected tribes, and agencies with jurisdiction and with expertise. The lead agency shall issue a DEIS and consider comments as stated in Part Five.

(3) A final EIS (FEIS) shall revise the DEIS as appropriate and respond to comments as required in WAC 197-11-560. An FEIS shall respond to opposing views on significant adverse environmental impacts and reasonable alternatives which the lead agency determines were not adequately discussed in the DEIS. The lead agency shall issue an FEIS as specified by WAC 197-11-460.

(4) A supplemental EIS (SEIS) shall be prepared as an addition to either a draft or final statement if:

(a) There are substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts; or

(b) There is significant new information indicating, or on, a proposal's probable significant adverse environmental impacts.

Preparation of a SEIS shall be carried out as stated in WAC 197-11-620.

(5) Agencies may use federal EISs, as stated in Part Six.



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-405, filed 2/10/84, effective 4/4/84.]




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197-11-406
EIS timing.
The lead agency shall commence preparation of the environmental impact statement as close as possible to the time the agency is developing or is presented with a proposal, so that preparation can be completed in time for the final statement to be included in appropriate recommendations or reports on the proposal (WAC 197-11-055). The statement shall be prepared early enough so it can serve practically as an important contribution to the decision making process and will not be used to rationalize or justify decisions already made. EISs may be "phased" in appropriate situations (WAC 197-11-060(5)).



[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-406, filed 2/10/84, effective 4/4/84.]




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197-11-408
Scoping.
(1) The lead agency shall narrow the scope of every EIS to the probable significant adverse impacts and reasonable alternatives, including mitigation measures. For example, if there are only two or three significant impacts or alternatives, the EIS shall be focused on those.

(2) To ensure that every EIS is concise and addresses the significant environmental issues, the lead agency shall:

(a) Invite agency, affected tribes, and public comment on the DS (WAC 197-11-360).

(i) If the agency requires written comments, agencies, affected tribes and the public shall be allowed twenty-one days from the date of issuance of the DS in which to comment, unless expanded scoping is used.

(ii) If a GMA county/city issues the scoping notice with the notice of application under RCW 36.70B.110, the comment period shall be no less than fourteen days.

(iii) The date of issuance for a DS is the date it is sent to the department of ecology and other agencies with jurisdiction, and is publicly available.

(b) Identify reasonable alternatives and probable significant adverse environmental impacts.

(c) Eliminate from detailed study those impacts that are not significant.

(d) Work with other agencies to identify and integrate environmental studies required for other government approvals with the EIS, where feasible.

(3) Agencies, affected tribes, and the public should comment promptly and as specifically as permitted by the details available on the proposal.

(4) Meetings or scoping documents, including notices that the scope has been revised,may be used but are not required. The lead agency shall integrate the scoping process with its existing planning and decision-making process in order to avoid duplication and delay. (continued)