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197–11–300 Purpose of this part.
197–11–305 Categorical exemptions.
197–11–310 Threshold determination required.
197–11–315 Environmental checklist.
197–11–330 Threshold determination process.
197–11–335 Additional information.
197–11–340 Determination of nonsignificance (DNS).
197–11–350 Mitigated DNS.
197–11–355 Optional DNS process.
197–11–360 Determination of significance (DS)/initiation of
scoping.
197–11–390 Effect of threshold determination.
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.]
(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.]
(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. A threshold determination is not required for a planned action (refer to WAC 197–11–164 through 197–11–172).
(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: 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.]
(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.]
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.]
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.]
(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.]
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.]
(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.]
(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.]
(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.]