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(continued)
(6) Comments by other agencies. Commenting agencies that are not consulted agencies shall specify any additional information or mitigation measures the commenting agency believes are necessary or desirable to satisfy its concerns.
(7) Citizen comments. Recognizing their generally more limited resources, members of the public shall make their comments as specific as possible and are encouraged to comment on methodology needed, additional information, and mitigation measures in the manner indicated in this section.
(8) An agency shall consider and may respond to comments as the agency deems appropriate; the requirements for responding in a FEIS shall be met (WAC 197-11-560).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-550, filed 2/10/84, effective 4/4/84.]
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197-11-560
FEIS response to comments.
(1) The lead agency shall prepare a final environmental impact statement whenever a DEIS has been prepared, unless the proposal is withdrawn or indefinitely postponed. The lead agency shall consider comments on the proposal and shall respond by one or more of the means listed below, including its response in the final statement. Possible responses are to:
(a) Modify alternatives including the proposed action.
(b) Develop and evaluate alternatives not previously given detailed consideration by the agency.
(c) Supplement, improve, or modify the analysis.
(d) Make factual corrections.
(e) Explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons that support the agency's response and, if appropriate, indicate those circumstances that would trigger agency reappraisal or further response.
(2) All substantive comments received on the draft statement shall be appended to the final statement or summarized, where comments are repetitive or voluminous, and the summary appended. If a summary of the comments is used, the names of the commenters shall be included (except for petitions).
(3) In carrying out subsection (1), the lead agency may respond to each comment individually, respond to a group of comments, cross-reference comments and corresponding changes in the EIS, or use other reasonable means to indicate an appropriate response to comments.
(4) If the lead agency does not receive any comments critical of the scope or content of the DEIS, the lead agency may so state in an updated fact sheet (WAC 197-11-440(2)), which shall be circulated under WAC 197-11-460. The FEIS shall consist of the DEIS and updated fact sheet.
(5) If changes in response to comments are minor and are largely confined to the responses described in subsections (1)(d) and (e) of this section, agencies may prepare and attach an addendum, which shall consist of the comments, the responses, the changes, and an updated fact sheet. The FEIS, consisting of the DEIS and the addendum, shall be issued under WAC 197-11-460, except that only the addendum need be sent to anyone who received the DEIS.
(6) An FEIS shall be issued and circulated under WAC 197-11-460.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-560, filed 2/10/84, effective 4/4/84.]
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197-11-570
Consulted agency costs to assist lead agency.
A consulted agency shall not charge the lead agency for any costs incurred in complying with WAC 197-11-550, including providing relevant data to the lead agency and copying documents for the lead agency. This section shall not prohibit a consulted agency from charging those costs allowed by chapter 42.17 RCW for copying any environmental document requested by an agency other than the lead agency or by an individual or private organization. This section does not prohibit agencies from making interagency agreements on cost or personnel sharing to provide environmental information to each other.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-570, filed 2/10/84, effective 4/4/84.]
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197-11-600
When to use existing environmental documents.
(1) This section contains criteria for determining whether an environmental document must be used unchanged and describes when existing documents may be used to meet all or part of an agency's responsibilities under SEPA.
(2) An agency may use environmental documents that have previously been prepared in order to evaluate proposed actions, alternatives, or environmental impacts. The proposals may be the same as, or different than, those analyzed in the existing documents.
(3) Any agency acting on the same proposal shall use an environmental document unchanged, except in the following cases:
(a) For DNSs, an agency with jurisdiction is dissatisfied with the DNS, in which case it may assume lead agency status (WAC 197-11-340 (2)(e) and 197-11-948).
(b) For DNSs and EISs, preparation of a new threshold determination or supplemental EIS is required if there are:
(i) Substantial changes to a proposal so that the proposal is likely to have significant adverse environmental impacts (or lack of significant adverse impacts, if a DS is being withdrawn); or
(ii) New information indicating a proposal's probable significant adverse environmental impacts. (This includes discovery of misrepresentation or lack of material disclosure.) A new threshold determination or SEIS is not required if probable significant adverse environmental impacts are covered by the range of alternatives and impacts analyzed in the existing environmental documents.
(c) For EISs, the agency concludes that its written comments on the DEIS warrant additional discussion for purposes of its action than that found in the lead agency's FEIS (in which case the agency may prepare a supplemental EIS at its own expense).
(4) Existing documents may be used for a proposal by employing one or more of the following methods:
(a) "Adoption," where an agency may use all or part of an existing environmental document to meet its responsibilities under SEPA. Agencies acting on the same proposal for which an environmental document was prepared are not required to adopt the document; or
(b) "Incorporation by reference," where an agency preparing an environmental document includes all or part of an existing document by reference.
(c) An addendum, that adds analyses or information about a proposal but does not substantially change the analysis of significant impacts and alternatives in the existing environmental document.
(d) Preparation of a SEIS if there are:
(i) Substantial changes so that the proposal is likely to have significant adverse environmental impacts; or
(ii) New information indicating a proposal's probable significant adverse environmental impacts.
(e) If a proposal is substantially similar to one covered in an existing EIS, that EIS may be adopted; additional information may be provided in an addendum or SEIS (see (c) and (d) of this subsection).
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-600, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-600, filed 2/10/84, effective 4/4/84.]
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197-11-610
Use of NEPA documents.
(1) An agency may adopt any environmental analysis prepared under the National Environmental Policy Act (NEPA) by following WAC 197-11-600 and 197-11-630.
(2) A NEPA environmental assessment may be adopted to satisfy requirements for a determination of nonsignificance or EIS, if the requirements of WAC 197-11-600 and 197-11-630 are met.
(3) An agency may adopt a NEPA EIS as a substitute for preparing a SEPA EIS if:
(a) The requirements of WAC 197-11-600 and 197-11-630 are met (in which case the procedures in Parts Three through Five of these rules for preparing an EIS shall not apply); and
(b) The federal EIS is not found inadequate: (i) By a court; (ii) by the council on environmental quality (CEQ) (or is at issue in a predecision referral to CEQ) under the NEPA regulations; or (iii) by the administrator of the United States Environmental Protection Agency under section 309 of the Clean Air Act, 42 U.S.C 1857.
(4) Subsequent use by another agency of a federal EIS, adopted under subsection (3) of this section, for the same (or substantially the same) proposal does not require adoption, unless the criteria in WAC 197-11-600(3) are met.
(5) If the lead agency has not held a public hearing within its jurisdiction to obtain comments on the adequacy of adopting a federal environmental document as a substitute for preparing a SEPA EIS, a public hearing for such comments shall be held if, within thirty days of circulating its statement of adoption, a written request is received from at least fifty persons who reside within the agency's jurisdiction or are adversely affected by the environmental impact of the proposal. The agency shall reconsider its adoption of the federal document in light of public hearing comments.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-610, filed 2/10/84, effective 4/4/84.]
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197-11-620
Supplemental environmental impact statement — Procedures.
(1) An SEIS shall be prepared in the same way as a draft and final EIS (WAC 197-11-400 to 197-11-600), except that scoping is optional. The SEIS should not include analysis of actions, alternatives, or impacts that is in the previously prepared EIS.
(2) The fact sheet and cover letter or memo for the SEIS shall indicate the EIS that is being supplemented.
(3) Unless the SEPA lead agency wants to prepare the SEIS, an agency with jurisdiction which needs the SEIS for its action shall be responsible for SEIS preparation.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-620, filed 2/10/84, effective 4/4/84.]
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197-11-625
Addenda — Procedures.
(1) An addendum shall clearly identify the proposal for which it is written and the environmental document it adds to or modifies.
(2) An agency is not required to prepare a draft addendum.
(3) An addendum for a DEIS shall be circulated to recipients of the initial DEIS under WAC 197-11-455.
(4) If an addendum to a final EIS is prepared prior to any agency decision on a proposal, the addendum shall be circulated to the recipients of the final EIS.
(5) Agencies are encouraged to circulate addenda to interested persons. Unless otherwise provided in these rules, however, agencies are not required to circulate an addendum.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-625, filed 2/10/84, effective 4/4/84.]
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197-11-630
Adoption — Procedures.
(1) The agency adopting an existing environmental document must independently review the content of the document and determine that it meets the adopting agency's environmental review standards and needs for the proposal. However a document is not required to meet the adopting agency's own procedures for the preparation of environmental documents (such as circulation, commenting, and hearing requirements) to be adopted.
(2) An agency shall adopt an environmental document by identifying the document and stating why it is being adopted, using the adoption form substantially as in WAC 197-11-965. The adopting agency shall ensure that the adopted document is readily available to agencies and the public by:
(a) Sending a copy to agencies with jurisdiction that have not received the document, as shown by the distribution list for the adopted document; and
(b) Placing copies in libraries and other public offices, or by distributing copies to those who request one.
(3) When an existing EIS is adopted and:
(a) A supplemental environmental impact statement or addendum is not being prepared, the agency shall circulate its statement of adoption as follows:
(i) The agency shall send copies of the adoption notice to the department of ecology, to agencies with jurisdiction, to cities/counties in which the proposal will be implemented, and to local agencies or political subdivisions whose public services would be changed as a result of implementation of the proposal.
(ii) The agency is encouraged to send the adoption notice to persons or organizations that have expressed an interest in the proposal or are known by the agency to have an interest in the type of proposal being considered, or the lead agency should announce the adoption in agency newsletters or through other means.
(iii) No action shall be taken on the proposal until seven days after the statement of adoption has been issued. The date of issuance shall be the date the statement of adoption has been sent to the department of ecology and other agencies and is publicly available.
(b) A SEIS is being prepared, the agency shall include the statement of adoption in the SEIS; or
(c) An addendum is being prepared, the agency shall include the statement of adoption with the addendum and circulate both as in subsection (3)(a) of this section.
(4) A copy of the adopted document must accompany the current proposal to the decision maker; the statement of adoption may be included.
(5) If known, the adopting agency shall disclose in its adoption notice when the adopted document or proposal it addresses is the subject of a pending appeal or has been found inadequate on appeal.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-630, filed 2/10/84, effective 4/4/84.]
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197-11-635
Incorporation by reference — Procedures.
(1) Agencies should use existing studies and incorporate material by reference whenever appropriate.
(2) Material incorporated by reference (a) shall be cited, its location identified, and its relevant content briefly described; and (b) shall be made available for public review during applicable comment periods.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-635, filed 2/10/84, effective 4/4/84.]
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197-11-640
Combining documents.
The SEPA process shall be combined with the existing planning, review, and project approval processes being used by each agency with jurisdiction. When environmental documents are required, they shall accompany a proposal through the existing agency review processes. Any environmental document in compliance with SEPA may be combined with any other agency documents to reduce duplication and paperwork and improve decision making. The page limits in these rules shall be met, or the combined document shall contain, at or near the beginning of the document, a separate summary of environmental considerations, as specified by WAC 197-11-440(4). SEPA page limits need not be met for joint state-federal EISs prepared under both SEPA and NEPA, in which case the NEPA page restrictions (40 CFR 1502.7) shall apply.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-640, filed 2/10/84, effective 4/4/84.]
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197-11-650
Purpose of this part.
The purpose of this part is to:
(1) Ensure the use of concise, high quality environmental documents and information in making decisions.
(2) Integrate the SEPA process with other laws and decisions.
(3) Encourage actions that preserve and enhance environmental quality, consistent with other essential considerations of state policy.
(4) Provide basic, uniform principles for the exercise of substantive authority and appeals under SEPA.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-650, filed 2/10/84, effective 4/4/84.]
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197-11-655
Implementation.
(1) See RCW 43.21C.020, 43.21C.030(1), 43.21C.060, 43.21C.075, and 43.21C.080.
(2) Relevant environmental documents, comments, and responses shall accompany proposals through existing agency review processes, as determined by agency practice and procedure, so that agency officials use them in making decisions.
(3) When a decision maker considers a final decision on a proposal:
(a) The alternatives in the relevant environmental documents shall be considered.
(b) The range of alternative courses of action considered by decision makers shall be within the range of alternatives discussed in the relevant environmental documents. However, mitigation measures adopted need not be identical to those discussed in the environmental document.
(c) If information about alternatives is contained in another decision document which accompanies the relevant environmental documents to the decision maker, agencies are encouraged to make that information available to the public before the decision is made.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-655, filed 2/10/84, effective 4/4/84.]
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197-11-660
Substantive authority and mitigation.
(1) Any governmental action on public or private proposals that are not exempt may be conditioned or denied under SEPA to mitigate the environmental impact subject to the following limitations:
(a) Mitigation measures or denials shall be based on policies, plans, rules, or regulations formally designated by the agency (or appropriate legislative body, in the case of local government) as a basis for the exercise of substantive authority and in effect when the DNS or DEIS is issued.
(b) Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the decision maker. The decision maker shall cite the agency SEPA policy that is the basis of any condition or denial under this chapter (for proposals of applicants). After its decision, each agency shall make available to the public a document that states the decision. The document shall state the mitigation measures, if any, that will be implemented as part of the decision, including any monitoring of environmental impacts. Such a document may be the license itself, or may be combined with other agency documents, or may reference relevant portions of environmental documents.
(c) Mitigation measures shall be reasonable and capable of being accomplished.
(d) Responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal. Voluntary additional mitigation may occur.
(e) Before requiring mitigation measures, agencies shall consider whether local, state, or federal requirements and enforcement would mitigate an identified significant impact.
(f) To deny a proposal under SEPA, an agency must find that:
(i) The proposal would be likely to result in significant adverse environmental impacts identified in a final or supplemental environmental impact statement prepared under this chapter; and
(ii) Reasonable mitigation measures are insufficient to mitigate the identified impact.
(g) If, during project review, a GMA county/city determines that the requirements for environmental analysis, protection, and mitigation measures in the GMA county/city's development regulations or comprehensive plan adopted under chapter 36.70A RCW, or in other applicable local, state or federal laws or rules, provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action under RCW 43.21C.240, the GMA county/city shall not impose additional mitigation under this chapter.
(2) Decision makers should judge whether possible mitigation measures are likely to protect or enhance environmental quality. EISs should briefly indicate the intended environmental benefits of mitigation measures for significant impacts (WAC 197-11-440(6)). EISs are not required to analyze in detail the environmental impacts of mitigation measures, unless the mitigation measures:
(a) Represent substantial changes in the proposal so that the proposal is likely to have significant adverse environmental impacts, or involve significant new information indicating, or on, a proposal's probable significant adverse environmental impacts; and
(b) Will not be analyzed in a subsequent environmental document prior to their implementation.
(3) Agencies shall prepare a document that contains agency SEPA policies (WAC 197-11-902), so that applicants and members of the public know what these policies are. This document shall include, or reference by citation, the regulations, plans, or codes formally designated under this section and RCW 43.21C.060 as possible bases for conditioning or denying proposals. If only a portion of a regulation, plan, or code is designated, the document shall identify that portion. This document (and any documents referenced in it) shall be readily available to the public and shall be available to applicants prior to preparing a draft EIS.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-660, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-660, filed 2/10/84, effective 4/4/84.]
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197-11-680
Appeals.
(1) Introduction. Appeals provisions in SEPA are found in RCW 43.21C.060, 43.21C.075 and 43.21C.080. These rules attempt to construe and interpret the statutory provisions. In the event a court determines that these rules are inconsistent with statutory provisions, or with the framework and policy of SEPA, the statute will control. Persons considering either administrative or judicial appeal of any decision which involves SEPA at all are advised to read the statutory sections cited above.
(2) Appeal to local legislative body. RCW 43.21C.060 allows an appeal to a local legislative body of any decision by a local nonelected official conditioning or denying a proposal under authority of SEPA. Agencies may establish procedures for such an appeal, or may eliminate such appeals altogether, by rule, ordinance or resolution. Such appeals are subject to the restrictions in RCW 36.70B.050 and 36.70B.060 that local governments provide no more than one open record hearing and one closed record appeal for permit decisions.
(3) Agency administrative appeal procedures.
(a) Agencies may provide for an administrative appeal of determinations relating to SEPA in their agency SEPA procedures. If so, the procedures must comply with the following:
(i) The agency must specify by rule, ordinance, or resolution that the appeals procedure is available.
(ii) Appeal of the intermediate steps under SEPA (e.g., lead agency determination, scoping, draft EIS adequacy) shall not be allowed.
(iii) Appeals on SEPA procedures shall be limited to review of a final threshold determination and final EIS. These appeals may occur prior to an agency's final decision on a proposed action.
(iv) An agency shall provide for only one administrative appeal of a threshold determination or of the adequacy of an EIS; successive administrative appeals on these issues within the same agency are not allowed. This limitation does not apply to administrative appeals before another agency.
(v) Except as provided in (a)(vi) of this subsection, the appeal shall consolidate any allowed appeals of procedural and substantive determinations under SEPA with a hearing or appeal on the underlying governmental action in a single simultaneous hearing before one hearing officer or body. The hearing or appeal shall be one at which the hearing officer or body will consider either the agency's decision or a recommendation on the proposed underlying governmental action. For example, an appeal of the adequacy of an EIS must be consolidated with a hearing or appeal on the agency's decision or recommendation on the proposed action, if both proceedings are allowed in agency procedures. If an agency does not provide for a hearing or appeal on the underlying governmental action (either a hearing on the agency's recommendation or an agency appeal hearing after the decision is made), the agency may not hold a SEPA administrative appeal, except as allowed under (a)(vi) of this subsection.
(vi) The following appeals of SEPA procedural or substantive determinations need not be consolidated with a hearing or appeal on the underlying governmental action:
(A) An appeal of a determination of significance;
(B) An appeal of a procedural determination made by an agency when the agency is a project proponent, or is funding a project, and chooses to conduct its review under SEPA, including any appeals of its procedural determinations, prior to submitting an application for a project permit. Subsequent appeals of substantive determinations by an agency with jurisdiction over the proposed project shall be allowed under the SEPA appeal procedures of the agency with jurisdiction;
(C) An appeal of a procedural determination made by an agency on a nonproject action; and
(D) An appeal to the local legislative authority under RCW 43.21C.060 or other applicable state statutes.
(vii) If a county/city to which RCW 36.70B.110 applies provides for an administrative appeal, any such appeal of a procedural or substantive determination under SEPA issued at the same time as the decision on a project action shall be filed within fourteen days after a notice of decision under RCW 36.70B.130 or after other notice that the decision has been made and is appealable. In order to allow public comment on a DNS prior to requiring an administrative appeal to be filed, this appeal period shall be extended for an additional seven days if the appeal is of a DNS for which public comment is required under this chapter or under county/city rules adopted under SEPA. For threshold determinations issued prior to a decision on a project action, any administrative appeal allowed by a county/city shall be filed within fourteen days after notice that the determination has been made and is appealable. Nothing in this subsection alters the requirements of (a)(v) and (vi) of this subsection.
(viii) Agencies shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight.
(b) Agencies providing for administrative appeals shall provide for a record as required by RCW 43.21C.075 (3)(c).
(c) If an agency provides an administrative appeal procedure, that procedure must be used before anyone may initiate judicial review of any SEPA issue that could have been reviewed under the agency procedures.
(4) Judicial appeals.
(a) SEPA authorizes judicial appeals of both procedural and substantive compliance with SEPA.
(b) When SEPA applies to a decision, any judicial appeal of that decision potentially involves both those issues pertaining to SEPA (SEPA issues) and those which do not (non-SEPA issues). RCW 43.21C.075 establishes time limits for raising SEPA issues, but says that existing statutes of limitations control the appeal of non-SEPA issues. The statute contemplates a single lawsuit.
(c) If there is a time limit established by statute or ordinance for appealing the underlying governmental action, then appeals (or portions thereof) raising SEPA issues must be filed within such time period.
(d) The notice of action procedures of RCW 43.21C.080 may still be used. If this procedure is used, then the time limits for judicial appeal specified in RCW 43.21C.080 shall apply, unless there is a time limit established by statute or ordinance for appealing the underlying governmental action. If so, the time limit for appeal of SEPA issues shall be the time limit in the statute or ordinance for the underlying governmental action. If the proposal requires more than one governmental decision that will be supported by the same SEPA documents, then RCW 43.21C.080 still only allows one judicial appeal of procedural compliance with SEPA, which must be commenced within the applicable time to appeal the first governmental decision.
(e) If the time limit established by statute or ordinance for appealing the underlying governmental action is less than fifteen days, then the notice of action in RCW 43.21C.080(1) may be given by publishing once within that shorter time period, in a newspaper of general circulation in the area where the property that is the subject of the action is located, and meeting the other requirements of RCW 43.21C.080.
(f) If there is no time limit established by statute or ordinance for appeal, and the notice of action provisions are not used, then SEPA provides no time limit for judicial appeals. Appeal times may still be limited, however, by general statutes of limitation or the common law.
(g) For the purposes of this subsection, "a time limit established by statute or ordinance" does not include time limits established by the general statutes of limitation in chapter 4.16 RCW.
(5) Official notice of the date and place for commencing a judicial appeal.
(a) Official notice of the date and place for commencing an appeal must be given if there is a time limit established by statute or ordinance for commencing an appeal of the underlying governmental action. The notice shall include:
(i) The time limit for commencing appeal of the underlying governmental action and SEPA issues, and the statute or ordinance establishing the time limit; and
(ii) Where an appeal may be filed.
(b) Notice is given by:
(i) Delivery of written notice to the applicant, all parties to any administrative appeal, and all persons who have requested notice of decisions with respect to the particular proposal in question; and
(ii) Following the agency's normal methods of notice for the type of governmental action taken.
(c) Written notice containing the information required by subsection (5)(a) of this section may be appended to the permit, decision documents, or SEPA compliance documents or may be printed separately.
(d) Official notices required by this subparagraph shall not be given prior to final agency action.
[Statutory Authority: Chapter 43.21C RCW and 1997 c 429. 98-06-092 (Order 97-43), § 197-11-680, filed 3/4/98, effective 3/8/98. Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-680, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 95-07-023 (Order 94-22), § 197-11-680, filed 3/6/95, effective 4/6/95; 84-05-020 (Order DE 83-39), § 197-11-680, filed 2/10/84, effective 4/4/84.]
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197-11-700
Definitions.
(1) The terms used in these rules shall be uniform throughout the state as applied to SEPA (WAC 197-11-040). Agencies may add to certain of these definitions in their procedures, to help explain how they carry out SEPA, but shall not change these definitions (WAC 197-11-906).
(2) Unless the context clearly requires otherwise:
(a) Use of the singular shall include the plural and conversely.
(b) "Preparation" of environmental documents refers to preparing or supervising the preparation of documents, including issuing, filing, printing, circulating, and related requirements.
(c) "Impact" refers to environmental impact.
(d) "Permit" means "license" (WAC 197-11-760).
(e) "Commenting" includes but is not synonymous with "consultation" (Part Five).
(f) "Environmental cost" refers to adverse environmental impact and may or may not be quantified.
(g) "EIS" refers to draft, final, and supplemental EISs (WAC 197-11-405 and 197-11-738).
(h) "Under" includes pursuant to, subject to, required by, established by, in accordance with, and similar expressions of legislative or administrative authorization or direction.
(3) In these rules:
(a) "Shall" is mandatory.
(b) "May" is optional and permissive and does not impose a requirement.
(c) "Include" means "include but not limited to."
(4) The following terms are synonymous:
(a) Effect and impact (WAC 197-11-752).
(b) Environment and environmental quality (WAC 197-11-740).
(c) Major and significant (WAC 197-11-764 and 197-11-794).
(d) Proposal and proposed action (WAC 197-11-784).
(e) Probable and likely (WAC 197-11-782).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-700, filed 2/10/84, effective 4/4/84.]
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197-11-702
Act.
"Act" means the State Environmental Policy Act, chapter 43.21C RCW, as amended, which is also referred to as "SEPA."
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-702, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-702, filed 2/10/84, effective 4/4/84.]
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197-11-704
Action.
(1) "Actions" include, as further specified below:
(a) New and continuing activities (including projects and programs) entirely or partly financed, assisted, conducted, regulated, licensed, or approved by agencies;
(b) New or revised agency rules, regulations, plans, policies, or procedures; and
(c) Legislative proposals.
(2) Actions fall within one of two categories:
(a) Project actions. A project action involves a decision on a specific project, such as a construction or management activity located in a defined geographic area. Projects include and are limited to agency decisions to:
(i) License, fund, or undertake any activity that will directly modify the environment, whether the activity will be conducted by the agency, an applicant, or under contract.
(ii) Purchase, sell, lease, transfer, or exchange natural resources, including publicly owned land, whether or not the environment is directly modified.
(b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.
(i) The adoption or amendment of legislation, ordinances, rules, or regulations that contain standards controlling use or modification of the environment;
(ii) The adoption or amendment of comprehensive land use plans or zoning ordinances;
(iii) The adoption of any policy, plan, or program that will govern the development of a series of connected actions (WAC 197-11-060), but not including any policy, plan, or program for which approval must be obtained from any federal agency prior to implementation;
(iv) Creation of a district or annexations to any city, town or district;
(v) Capital budgets; and
(vi) Road, street, and highway plans.
(3) "Actions" do not include the activities listed above when an agency is not involved. Actions do not include bringing judicial or administrative civil or criminal enforcement actions (certain categorical exemptions in Part Nine identify in more detail governmental activities that would not have any environmental impacts and for which SEPA review is not required).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-704, filed 2/10/84, effective 4/4/84.]
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197-11-706
Addendum.
"Addendum" means an environmental document used to provide additional information or analysis that does not substantially change the analysis of significant impacts and alternatives in the existing environmental document. The term does not include supplemental EISs. An addendum may be used at any time during the SEPA process.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-706, filed 2/10/84, effective 4/4/84.]
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197-11-708
Adoption.
"Adoption" means an agency's use of all or part of an existing environmental document to meet all or part of the agency's responsibilities under SEPA to prepare an EIS or other environmental document.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-708, filed 2/10/84, effective 4/4/84.]
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197-11-710
Affected tribe.
Affected tribe or "treaty tribe" means any Indian tribe, band, nation or community in the state of Washington, that is federally recognized by the United States Secretary of the Interior and that will or may be affected by the proposal.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-710, filed 2/10/84, effective 4/4/84.]
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197-11-712
Affecting.
"Affecting" means having, or may be having, an effect on (see WAC 197-11-752 on impacts). For purposes of deciding whether an EIS is required and what the EIS must cover, "affecting" refers to having probable, significant adverse environmental impacts (RCW 43.21C.031 and 43.21C.110 (1)(c)).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-712, filed 2/10/84, effective 4/4/84.]
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197-11-714
Agency.
(1) "Agency" means any state or local governmental body, board, commission, department, or officer authorized to make law, hear contested cases, or otherwise take the actions stated in WAC 197-11-704, except the judiciary and state legislature. An agency is any state agency (WAC 197-11-796) or local agency (WAC 197-11-762).
(2) "Agency with environmental expertise" means an agency with special expertise on the environmental impacts involved in a proposal or alternative significantly affecting the environment. These agencies are listed in WAC 197-11-920; the list may be expanded in agency procedures (WAC 197-11-906). The appropriate agencies must be consulted in the environmental impact statement process, as required by WAC 197-11-502.
(3) "Agency with jurisdiction" means an agency with authority to approve, veto, or finance all or part of a nonexempt proposal (or part of a proposal). The term does not include an agency authorized to adopt rules or standards of general applicability that could apply to a proposal, when no license or approval is required from the agency for the specific proposal. The term also does not include a local, state, or federal agency involved in approving a grant or loan, that serves only as a conduit between the primary administering agency and the recipient of the grant or loan. Federal agencies with jurisdiction are those from which a license or funding is sought or required.
(4) If a specific agency has been named in these rules, and the functions of that agency have changed or been transferred to another agency, the term shall mean any successor agency.
(5) For those proposals requiring a hydraulic project approval under RCW 75.20.100, both the department of game and the department of fisheries shall be considered agencies with jurisdiction.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-714, filed 2/10/84, effective 4/4/84.]
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197-11-716
Applicant.
"Applicant" means any person or entity, including an agency, applying for a license from an agency. Application means a request for a license.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-716, filed 2/10/84, effective 4/4/84.]
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197-11-718
Built environment.
"Built environment" means the elements of the environment as specified by RCW 43.21C.110 (1)(f) and WAC 197-11-444(2), which are generally built or made by people as contrasted with natural processes.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-718, filed 2/10/84, effective 4/4/84.]
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197-11-720
Categorical exemption.
"Categorical exemption" means a type of action, specified in these rules, which does not significantly affect the environment (RCW 43.21C.110 (1)(a)); categorical exemptions are found in Part Nine of these rules. Neither a threshold determination nor any environmental document, including an environmental checklist or environmental impact statement, is required for any categorically exempt action (RCW 43.21C.031). These rules provide for those circumstances in which a specific action that would fit within a categorical exemption shall not be considered categorically exempt (WAC 197-11-305).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-720, filed 2/10/84, effective 4/4/84.]
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197-11-721
Closed record appeal.
"Closed record appeal" means an administrative appeal held under chapter 36.70B RCW that is on the record to a county/city body or officer, including the legislative body, following an open record hearing on a project permit application when the appeal is on the record with no or limited new evidence or information allowed to be submitted and only appeal arguments allowed. (RCW 36.70B.020(1).)
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-721, filed 10/10/97, effective 11/10/97.]
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197-11-722
Consolidated appeal.
"Consolidated appeal" means the procedure requiring a person to file an agency appeal challenging both procedural and substantive compliance with SEPA at the same time, as provided under RCW 43.21C.075 (3)(b) and the exceptions therein. If an agency does not have an appeal procedure for challenging either the agency's procedural or its substantive SEPA determinations, the appeal cannot be consolidated prior to any judicial review. The requirement for a consolidated appeal does not preclude agencies from bifurcating appeal proceedings and allowing different agency officials to hear different aspects of the appeal. (WAC 197-11-680.)
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-722, filed 2/10/84, effective 4/4/84.]
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197-11-724
Consulted agency.
"Consulted agency" means any agency with jurisdiction or expertise that is requested by the lead agency to provide information during the SEPA process.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-724, filed 2/10/84, effective 4/4/84.]
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197-11-726
Cost-benefit analysis.
"Cost-benefit analysis" means a quantified comparison of costs and benefits generally expressed in monetary or numerical terms. It is not synonymous with the weighing or balancing of environmental and other impacts or benefits of a proposal.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-726, filed 2/10/84, effective 4/4/84.]
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197-11-728
County/city.
(1) "County/city" means a county, city, or town. In this chapter, duties and powers are assigned to a county, city, or town as a unit. The delegation of responsibilities among the various departments of a county, city, or town is left to the legislative or charter authority of the individual counties, cities, or towns.
(2) A "GMA county/city" means a county, city, or town planning under the Growth Management Act.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97-21-030 (Order 95-16), § 197-11-728, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-728, filed 2/10/84, effective 4/4/84.]
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197-11-730
Decision maker.
"Decision maker" means the agency official or officials who make the agency's decision on a proposal. The decision maker and responsible official are not necessarily synonymous, depending on the agency and its SEPA procedures (WAC 197-11-906 and 197-11-910).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-730, filed 2/10/84, effective 4/4/84.]
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197-11-732
Department.
"Department" means the Washington state department of ecology.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-732, filed 2/10/84, effective 4/4/84.]
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197-11-734
Determination of nonsignificance (DNS).
"Determination of nonsignificance" (DNS) means the written decision by the responsible official of the lead agency that a proposal is not likely to have a significant adverse environmental impact, and therefore an EIS is not required (WAC 197-11-310 and 197-11-340). The DNS form is in WAC 197-11-970.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-734, filed 2/10/84, effective 4/4/84.]
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197-11-736
Determination of significance (DS).
"Determination of significance" (DS) means the written decision by the responsible official of the lead agency that a proposal is likely to have a significant adverse environmental impact, and therefore an EIS is required (WAC 197-11-310 and 197-11-360). The DS form is in WAC 197-11-980 and must be used substantially in that form.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-736, filed 2/10/84, effective 4/4/84.]
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197-11-738
EIS.
"EIS" means environmental impact statement. The term "detailed statement" in RCW 43.21C.030 (2)(c) refers to a final EIS. The term "EIS" as used in these rules refers to draft, final, or supplemental EISs (WAC 197-11-405).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-738, filed 2/10/84, effective 4/4/84.]
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197-11-740
Environment.
"Environment" means, and is limited to, those elements listed in WAC 197-11-444, as required by RCW 43.21C.110 (1)(f). Environment and environmental quality refer to the state of the environment and are synonymous as used in these rules and refer basically to physical environmental quality.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-740, filed 2/10/84, effective 4/4/84.]
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197-11-742
Environmental checklist.
"Environmental checklist" means the form in WAC 197-11-960. Rules for its use are in WAC 197-11-315.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-742, filed 2/10/84, effective 4/4/84.]
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197-11-744
Environmental document.
"Environmental document" means any written public document prepared under this chapter. Under SEPA, the terms environmental analysis, environmental study, environmental report, and environmental assessment do not have specialized meanings and do not refer to particular environmental documents (unlike various other state or federal environmental impact procedures).
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-744, filed 2/10/84, effective 4/4/84.]
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197-11-746
Environmental review.
"Environmental review" means the consideration of environmental factors as required by SEPA. The "environmental review process" is the procedure used by agencies and others under SEPA for giving appropriate consideration to the environment in agency decision making.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-746, filed 2/10/84, effective 4/4/84.]
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197-11-750
Expanded scoping.
"Expanded scoping" is an optional process that may be used by agencies to go beyond minimum scoping requirements.
[Statutory Authority: RCW 43.21C.110. 84-05-020 (Order DE 83-39), § 197-11-750, filed 2/10/84, effective 4/4/84.] (continued)