15.02.120 SEPA procedures | Everett Municipal Code

15.02.120 SEPA procedures.

1. The primary purpose of the environmental review process is to provide environmental information to governmental decisionmakers to be considered prior to making their decision, and to provide for appropriate mitigation of environmental impacts in compliance with this title, the SEPA ordinance (Chapter 19.43), and the SEPA rules (Chapter 197-11 WAC). The threshold determination and the EIS (if required) should be completed at the earliest point in the planning and decision-making process, at which time principal features of a proposal and its environmental impacts can be reasonably identified.

2. If the responsible official determines that the information initially supplied by an applicant is not reasonably sufficient to evaluate the environmental impacts of a proposal subject to environmental review under SEPA, further information may be required of the applicant under WAC 197-11-100 and 197-11-335, and this chapter.

a. The environmental checklist and necessary studies and analysis supporting the environmental checklist are part of the required permit application and are subject to the determination of completeness or incomplete application provisions of this title.

b. Any additional information required by the responsible official must be submitted as required by this title. Applicants should be aware that the city will evaluate projects that have incomplete or unavailable information under WAC 197-11-080.

3. At a minimum, any DNS, MDNS, or final environmental document shall be completed prior to the city making any decision irreversibly committing itself to adopt, approve or otherwise undertake any proposed nonexempt action. Further, as specified in WAC 197-11-070, until the responsible official issues a final DNS or final EIS, the city shall take no action concerning the proposal that would:

a. Have an adverse environmental impact; or

b. Limit the choice of reasonable alternatives.

4. For nonexempt proposals, the final DNS, MDNS, final EIS, or other final environmental document for the proposal shall accompany the city’s final staff recommendation to any appropriate advisory body, such as the planning commission; provided, however, that preliminary discussions, public workshops or preliminary public hearings or meetings before the advisory body may occur prior to the final SEPA determinations. Exception: the SEPA threshold determination does not need to be final prior to a public hearing or meeting by the historic commission on a proposed project in the historic overlay zone since the historic commission’s action is advisory to the responsible official.

5. When the city is the proponent for either a governmental action of a project nature or a governmental action of a nonproject nature, and the city is also the lead agency, then the maximum time limits contained in this chapter for the threshold determination and EIS process shall not apply to the proposal.

1. The responsible official shall determine if a permit or governmental proposal initiated by the city is categorically exempt. The determination of whether or not a proposal is exempt shall be made by:

a. Ascertaining that the proposal is properly defined and by identifying the governmental permit required (WAC 197-11-060); and

b. Determining whether the proposal is exempt as minor new construction as set forth in Section 19.43.130 or new infill development as set forth in Section 19.43.140.

c. If a proposal includes a series of actions, physically or functionally related to each other, some of which are exempt and some of which are not, the proposal shall not be exempt.

d. The responsible official’s determination that a proposal is exempt shall be final and not subject to administrative review.

2. If a proposal includes both exempt and nonexempt actions, exempt actions may be authorized with respect to the proposal prior to compliance with the procedural requirements of these guidelines subject to the following limitations:

a. No nonexempt action shall be authorized;

b. No action shall be authorized that would have an adverse environmental impact or limit the choice of reasonable alternatives;

c. The responsible official may withhold approval of an exempt action that would lead to modification of the physical environment, when such modifications would serve no purpose if later approval of a nonexempt action is not secured;

d. The responsible official may withhold approval of exempt actions that would lead to substantial financial expenditures by a private applicant which would serve no purpose if later approval of a nonexempt action is not secured.

3. A determination whether the project or proposal is categorically exempt shall be made by the responsible official within fifteen days of receiving a request for such a determination from a private applicant or another governmental agency.

1. When a threshold determination is required under WAC 197-11-310 and an environmental checklist is required under WAC 197-11-315(1)(a), a completed environmental checklist, substantially in the form provided in WAC 197-11-960, shall be filed with the application. For any application, including resubmitted applications, the city may use an existing SEPA determination or may require new or additional environmental documents as provided by WAC 197-11-600, including adoption of NEPA documents.

2. For private proposals, the city will require the applicant to complete the environmental checklist. The city may require that it, and not the private applicant, will complete all or part of the environmental checklist for a private proposal, if either of the following occurs:

a. The city has technical information on a question or questions contained in the environmental checklist that is unavailable to the private applicant; or

b. The applicant has provided misleading and inaccurate information on previous proposals or on proposals currently under consideration.

1. As provided in this section and in WAC 197-11-350, the responsible official may issue a mitigated determination of nonsignificance (mitigated DNS) for a proposal whenever:

a. The city specifies mitigation measures in its DNS and conditions the proposal to include those mitigation measures so that the proposal will not have a probable significant adverse environmental impact; and

b. The proposal is clarified or changed by the applicant to mitigate impacts of the proposal so that, in the judgment of the responsible official, the proposal will not have a probable significant adverse environmental impact.

2. After submission of an environmental checklist and prior to the city’s threshold determination, an applicant may submit a written request for early notice of whether a determination of significance (DS) is likely under WAC 197-11-350.

3. The responsible official should respond to the request for early notice within fifteen working days. The response shall:

a. Be written;

b. State whether the city currently considers issuance of a DS likely and, if so, indicate the potentially significant adverse environmental impacts that are leading the city to consider a DS; and

c. State that the applicant may change or clarify the proposal to mitigate the indicated impacts, and revise the environmental checklist and/or permit application for the proposal as necessary to describe the changes or clarifications.

4. As much as possible, the city should assist the applicant with identification of impacts to the extent necessary to formulate mitigation measures.

5. When an applicant submits a changed or clarified proposal, along with a revised environmental checklist, the city shall base its threshold determination on the changed or clarified proposal and should make the determination within fourteen days of receiving the changed or clarified proposal.

a. If the city indicated specific mitigation measures in its response to the request for early notice, and the applicant changed or clarified the proposal to include those specific mitigation measures, the city shall issue and circulate a mitigated determination of nonsignificance under WAC 197-11-340(2). The responsible official shall reconsider the DNS based on timely comments and may retain, modify or withdraw the DNS under WAC 197-11-340(2)(f).

6. If the city indicated potentially significant adverse environmental impacts, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city shall make the threshold determination, issuing a DNS or DS as appropriate.

a. The applicant’s proposed mitigation measures (clarifications, changes or conditions) must be in writing and must be specific. For example, proposals to “control noise” or “prevent storm water runoff” are inadequate whereas proposals to “muffle machinery to X decibel” or “construct two-hundred-foot storm water retention pond at Y location” may be adequate.

b. Environmental documents need not be revised and resubmitted if the clarifications or changes to the proposal are stated in writing in attachments to, or documents incorporated by reference into, the environmental review record. An addendum may be used in compliance with WAC 197-11-600 and 197-11-425.

c. If a proposal continues to have a probable significant adverse environmental impact, even with mitigation measures, an EIS shall be prepared.

7. The city’s written response to a request for early notice under the mitigated DNS provisions of this section shall not be construed as a determination of significance.

8. A mitigated DNS issued under WAC 197-11-340(2) or 197-11-355 requires a public notice under Section 15.02.130. Whenever possible, SEPA notice under this section or the optional DNS process will be combined with or issued concurrently with other required notices including the notice of completeness, notice of application, and notice of public hearing.

9. Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the city.

10. If the city’s tentative decision on a permit or approval does not include mitigation measures that were incorporated in a mitigated DNS for the proposal, the responsible official should reevaluate the threshold determination to assure consistency with WAC 197-11-340(3)(a) (withdrawal of DNS).

1. Preparation of draft and final EISs and draft and final supplemental EISs is the responsibility of the city under the direction of the responsible official per the procedures contained in this subsection. Before the city issues an EIS, the responsible official shall be satisfied that it complies with this chapter and Chapter 197-11 WAC.

2. The draft and final EIS or SEIS shall be prepared by a consultant selected by the city per the city’s adopted procedures. However, city staff may prepare EISs for city proposals. If the responsible official requires an EIS for a proposal, the responsible official shall notify the applicant immediately after completion of the threshold determination. The responsible official shall also notify the applicant of the city’s procedure for EIS preparation, including approval of the DEIS and FEIS prior to distribution.

3. The city may require that an applicant provide information the city does not possess, including specific investigations necessary to identify potentially significant adverse environmental impacts. However, the applicant may not be required to supply information that is not required under this chapter or WAC 197-11-100. (The limitation does not apply to information the city may request under another ordinance or statute.)

(1) When an EIS is required, all information required by the SEPA rules shall be presented by the consultant in substantially the same form as for the draft environmental impact statement in accordance with procedures of this subsection.

(2) The responsible official shall assure that the EIS is prepared in a responsible manner and with appropriate methodology. The responsible official shall direct the areas of research and examination to be undertaken, as well as the organization of the resulting document in accordance with this subsection.

(3) The draft environmental impact statement shall be prepared, or reviewed and approved, by the responsible official prior to distribution. If, in the opinion of the responsible official, the information provided by the consultant and/or subconsultant(s) for the draft environmental impact statement is inadequate, erroneous, misleading, unclear, has excessive jargon, or otherwise deficient, the responsible official will cause its distribution to be delayed for such time as may be required to correct said deficiencies.

(4) Upon acceptance of the information required under this section for the draft environmental impact statement, such information shall become the property of the city and the responsible official shall possess the right to edit, reproduce, modify and distribute said information.

b. Preparation of Final Environmental Impact Statement. Upon acceptance of the draft EIS, the responsible official shall cause its circulation and shall finalize said EIS in accordance with the procedures required by this title and the SEPA rules.

(1) When a DS is issued, a consultant will be selected per the city’s adopted procedures.

(2) When a DS is issued, the applicant shall solicit and provide to the responsible official statements of qualifications for preparation of the EIS from at least three consultants.

(3) Based upon the responsible official’s review of the responses to the statement of qualifications, the responsible official shall select a consultant and appropriate subconsultant or reject the proposed consultant and/or subconsultant and require that the applicant solicit new statements of qualifications. The review may include interviews with the responsible official.

(4) Upon issuance of a scoping determination by the responsible official, it shall be the responsibility of the applicant to negotiate a contract with the consultant and any subconsultant selected by the responsible official. The contract shall address all items in the scoping document. If there is a conflict between the contract and the scoping document, the scoping document shall prevail. The contract shall provide for modification to the scope based upon the results of the environmental studies and analysis developed in the course of preparing the draft EIS. The contract shall reserve sufficient funds for preparation of a well-written cover memo and summary for both the draft and final EIS that meet the requirements in WAC 197-11-435 and 197-11-440(4) to synthesize the environmental analysis and evaluate and effectively communicate the environmental choices to be made among alternative courses of action and the effectiveness of mitigation measures, focusing on the main options that would be preserved or foreclosed for the future. After the responsible official is notified by the consultant and/or subconsultant that the contract with the applicant has been negotiated and executed in accordance with the provisions of this chapter and the city’s adopted procedures, the consultant/subconsultant work on the EIS shall commence.

(5) The responsible official will meet with the consultant and any subconsultants to direct preparation of the draft EIS. The consultant shall meet with the applicant and/or discuss the EIS process with the applicant only when authorized by the responsible official.

(6) When the rough and preliminary draft EIS is provided to the responsible official, the consultant shall also provide a copy to the applicant, and the applicant shall be provided an opportunity to comment.

(7) All fees charged by the consultant and any subconsultant shall be the responsibility of the applicant. In no event shall the city be responsible for any such fees charged by the consultant or subconsultant except when the city is the applicant. All consultant and subconsultant contracts shall include language which recognizes that payment of the consultant/subconsultant fees shall be the sole responsibility of the applicant and not the responsibility of the city.

(8) In the event the actions or inactions of the consultant/subconsultant jeopardize the EIS process as defined herein, the responsible official is authorized to impose penalties in accordance with rules adopted by the responsible official. Such rules shall be incorporated into the consultant/subconsultant contract and the contract shall be consistent with said rules.

d. Consultant/Applicant Responsibilities. When a consultant prepares a draft, final or supplemental EIS, the following responsibilities are hereby specified (for purposes of this section, the term EIS includes any graphics, supporting materials, and technical studies):

(1) Consultant and subconsultant selected by city;

(2) City determines the scope of the EIS in compliance with WAC 197-11-360, and WAC 197-11-408 or 197-11-410 as appropriate;

(3) Applicant negotiates and executes contract with consultant and required subconsultants;

(4) Consultant submits information in the form of a rough draft EIS to city and applicant;

(5) Applicant reviews and provides comments on rough draft EIS to city;

(6) City reviews the rough draft EIS and applicant’s comments;

(7) City prepares review comments and directs changes to the document;

(8) Consultant prepares preliminary draft of EIS;

(9) City approves preliminary draft EIS or directs that further revisions be made;

(10) Consultant prepares approved draft EIS in sufficient quantity to satisfy WAC 197-11-455. The specific number shall be determined by the responsible official;

(11) Consultant circulates draft EIS to agencies with expertise and jurisdiction, affected tribes and persons requesting a copy in compliance with WAC 197-11-455;

(12) City reviews comments and directs consultant in preparation of changes and additions to draft EIS, responses to draft EIS comments and preparation of final EIS, including reasonable alternatives or modified alternatives and environmental impacts that might not have been studied or fully evaluated in the draft EIS, using the same sequence of rough and preliminary final EIS as described above for the draft EIS;

(13) Consultant prepares final EIS;

(14) Consultant circulates final EIS in compliance with WAC 197-11-460.

e. Public notice shall be given as specified in Section 15.02.130 at the expense of the applicant. (Ord. 3774-20 § 3 (Exh. 2), 2020.)