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197–11–900
Purpose of this part.
197–11–902 Agency SEPA
policies.
197–11–904 Agency SEPA
procedures.
197–11–906
Content and consistency of agency procedures.
197–11–908 Critical areas.
197–11–910
Designation of responsible official.
197–11–912
Procedures of consulted agencies.
197–11–914 SEPA
fees and costs.
197–11–916
Application to ongoing actions.
197–11–917
Relationship to chapter 197–10 WAC.
197–11–918 Lack of
agency procedures.
197–11–920
Agencies with environmental expertise.
197–11–922 Lead agency
rules.
197–11–924
Determining the lead agency.
197–11–926
Lead agency for governmental proposals.
197–11–928
Lead agency for public and private proposals.
197–11–930
Lead agency for private projects with one agency with jurisdiction.
197–11–932
Lead agency for private projects requiring licenses from more than one
agency, when one of the agencies is a county/city.
197–11–934
Lead agency for private projects requiring licenses from a local agency,
not a county/city, and one or more state agencies.
197–11–936
Lead agency for private projects requiring licenses from more than one
state agency.
197–11–938
Lead agencies for specific proposals.
197–11–940
Transfer of lead agency status to a state agency.
197–11–942
Agreements on lead agency status.
197–11–944
Agreements on division of lead agency duties.
197–11–946
DOE resolution of lead agency disputes.
197–11–948
Assumption of lead agency status.
197–11–950 Severability.
197–11–955 Effective date.
WAC 197–11–900 Purpose of this part. The purpose of this part is to:
(1) Require each agency to adopt its own rules and procedures to carry out SEPA and ensure that agency rules and procedures shall have the force and effect of law and shall be consistent with these uniform statewide rules.
(2) Require agencies to include certain items in their rules.
(3) Ensure the documents prepared under the act are available to the public.
(4) Identify agencies with environmental expertise.
(5) Provide rules for determining the lead agency.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–900, filed 2/10/84, effective 4/4/84.]
WAC 197–11–902 Agency SEPA policies.
(1) The act and these rules allow agencies to condition or deny proposals if such action is based upon policies identified by the appropriate governmental authority. These policies must be incorporated into regulations, plans, or codes formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of substantive authority under SEPA. (RCW 43.21C.060; WAC 197–11–660.) State and local policies so designated are called "agency SEPA policies" in these rules.
(2) Agencies are required to designate their SEPA policies not later than one hundred eighty days after the effective date of these rules (or the creation of the agency). In order to condition or deny a proposal, an agency must comply with the provisions of RCW 43.21C.060 and WAC 197–11–660. If an agency has already formally designated agency SEPA policies that meet the requirements of the act and these rules, the agency is not required to adopt them again. Agencies may revise or add to their SEPA policies at any time. Although agency SEPA procedures cannot change the provisions of these rules concerning substantive authority and mitigation (WAC 197–11–906(2)), agency SEPA policies are encouraged to identify specific mitigation measures or techniques.
(3) An agency’s document that includes or references by citation their agency SEPA policies (WAC 197–11–660(3)) may be included in agency SEPA procedures (WAC 197–11–904). Public notice and opportunity for public comment shall be provided as part of the agency process for formally designating its SEPA policies.
(4) Depending on their content, the formal designation of agency SEPA policies will not necessarily require any environmental review and will normally be categorically exempt as a procedural action under WAC 197–11–800(20). For example, the policies may merely compile, reorganize, or reference laws or policies currently on the books, or may otherwise be procedural in nature, such as requiring decision makers to consider certain factors.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–902, filed 2/10/84, effective 4/4/84.]
WAC 197–11–904 Agency SEPA procedures.
(1) Each agency is required by the act and this section to adopt its own rules and procedures for implementing SEPA. (RCW 43.21C.120.) Agencies may revise or add to their SEPA procedures at any time. Agencies may adopt these rules (chapter 197–11 WAC) by reference, and shall meet the requirements of WAC 197–11–906 concerning the content of their procedures. State and local rules for carrying out SEPA procedures are called "agency SEPA procedures."
(2) State agencies shall adopt or amend their procedures within one hundred eighty days of the effective date of this chapter or subsequent revisions, or within one hundred eighty days of the establishment of an agency, whichever shall occur later. State agencies shall adopt their procedures by rule making under the state Administrative Procedure Act, chapter 34.05 RCW. If a state agency does not have rule making authority under chapter 34.05 RCW, the agency shall adopt procedures under whatever authority it has, and public notice and opportunity for public comment shall be provided. Adoption shall be deemed to have taken place at the time the transmittal of adopted rules is filed with the code reviser.
(3) Local agencies shall adopt or amend their procedures within one hundred eighty days of the effective date of this chapter or subsequent revisions, or within one hundred eighty days of the establishment of the local governmental entity, whichever shall occur later. Local agencies shall adopt their procedures by rule, ordinance, or resolution, whichever is appropriate, to ensure that the procedures have the full force and effect of law. Public notice and opportunity for public comment shall be provided as part of the agency’s process for adopting its SEPA procedures.
(4) Any agency determining that all actions it is authorized to take are exempt under Part Nine of these rules may adopt a statement to the effect that it has reviewed its authorized activities and found them all to be exempt under this chapter. Adoption of such a statement under the procedures in subsections (2) and (3) shall be deemed to be in compliance with the requirement that the agency adopt procedures under this chapter.
(5) The adoption of agency procedures is procedural and shall be categorically exempt under this chapter (WAC 197–11–800(20)).
[Statutory Authority: RCW 43.21C.110. 95–07–023 (Order 94–22), § 197–11–904, filed 3/6/95, effective 4/6/95; 84–05–020 (Order DE 83–39), § 197–11–904, filed 2/10/84, effective 4/4/84.]
WAC 197–11–906 Content and consistency of agency procedures.
(1)(a) Agency SEPA policies and procedures shall implement and be consistent with the rules in this chapter. Unless optional or permissive (see WAC 197–11–704), all of the provisions of this chapter are mandatory, and agency procedures shall incorporate these rules and criteria.
(b) Permissive and optional rules shall not be construed as mandatory requirements. Rules giving encouragement or guidance shall also not be construed as mandatory. The decision on whether to apply an optional provision rests with the responsible official.
(c) Except as stated in the next subsection, the rules in this chapter are not exclusive, and agencies may add procedures and criteria. However, any additional material shall not be inconsistent with, contradict, or make compliance with any provision of these rules a practical impossibility. Any additional material shall be consistent with SEPA.
(d) Agency procedures shall also include the procedures required by sections WAC 197–11–055 (3)(a) and (4), 197–11–420 (1) and (4), and 197–11–910.
(e) Agency procedures may include procedures under WAC 197–11–055 (2) and (7), 197–11–100(3), 197–11–680, 197–11–714(2), 197–11–800(1), and 197–11–908. Any such procedures shall include the content required by those rules.
(2) The following provisions of this chapter are exclusive and may not be added to or changed in agency procedures:
(a) The definitions of "proposal," "major," "action," "significant," "affecting," "environment," "categorical exemption," "agencies with jurisdiction," "lands covered by water," "built environment," "natural environment," "license," "licensing," "mitigation," and "scope";
(b) The criteria for lead agency determination (Part Ten of these rules);
(c) The categorical exemptions in Part Nine of these rules, unless expressly allowed under Part Nine;
(d) The information allowed to be required of applicants under WAC 197–11–080, 197–11–100, 197–11–335, and 197–11–420;
(e) The requirements for the style and size of an EIS (WAC 197–11–425);
(f) The list of elements of the environment (WAC 197–11–444); and
(g) The provisions on substantive authority and mitigation in WAC 197–11–660.
(3) The following provisions of this chapter may not be changed, but may be added to; any additions shall meet the criteria for additional material stated in subsection (1)(c) of this section:
(a) All other definitions in Part Eight of these rules;
(b) The provisions in Parts Four and Five of these rules, except as necessary to be grammatically incorporated into agency procedures;
(c) The contents of agency SEPA procedures (WAC 197–11–906); and
(d) The list of agencies with environmental expertise (WAC 197–11–920).
(4) The forms in Part Eleven shall be used substantially as set forth. Minor changes are allowed to make the forms more useful to agencies, applicants, and the public, as long as the changes do not eliminate requested information or impose burdens on applicants. The questions in Part Two of the environmental checklist shall not be altered.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–906, filed 2/10/84, effective 4/4/84.]
WAC 197–11–908 Critical areas.
(1) Each county/city may select certain categorical exemptions that do not apply in one or more critical areas designated in a critical areas ordinance adopted under GMA (RCW 36.70A.060). The selection of exemptions that will not apply may be made from the following subsections of WAC 197–11–800: (1), (2)(a) through (h), (3), (5), (6)(a), (14)(c), (24)(a) through (g), and (25)(d), (f), (h), (i).
The scope of environmental review of actions within these areas shall be limited to:
(a) Documenting whether the proposal is consistent with the requirements of the critical areas ordinance; and
(b) Evaluating potentially significant impacts on the critical area resources not adequately addressed by GMA planning documents and development regulations, if any, including any additional mitigation measures needed to protect the critical areas in order to achieve consistency with SEPA and other applicable environmental review laws.
All other categorical exemptions apply whether or not the proposal will be located within a critical area. Exemptions selected by an agency under this section shall be listed in the agency’s SEPA procedures (WAC 197–11–906).
(2) Proposals that will be located within critical areas are to be treated no differently than other proposals under this chapter, except as stated in the prior subsection. A threshold determination shall be made for all such actions, and an EIS shall not be automatically required for a proposal merely because it is proposed for location in a critical area.
[Statutory Authority: RCW 43.21C.110. 95–07–023 (Order 94–22), § 197–11–908, filed 3/6/95, effective 4/6/95; 84–05–020 (Order DE 83–39), § 197–11–908, filed 2/10/84, effective 4/4/84.]
WAC 197–11–910 Designation of responsible official. Agency SEPA procedures shall designate or provide a method of designating the responsible official with speed and certainty (WAC 197–11–906 (1)(d)). This designation may vary depending upon the nature of the proposal. The responsible official shall carry out the duties and functions of the agency when it is acting as the lead agency under these guidelines. Since it is possible under these rules for an agency to be acting as a lead agency prior to actually receiving an application for a license to undertake a private project, designation of the first department within the agency to receive an application as the responsible official will not be sufficient.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–910, filed 2/10/84, effective 4/4/84.]
WAC 197–11–912 Procedures of consulted agencies. Each agency shall develop internal procedures, manuals, or guidance for providing responses to consultation requests from other agencies pertaining to threshold investigations, the scoping process, or EISs. Such procedures shall ensure that the agency will comply with the requirements of Part Five of these rules. It is recommended that these procedures be integrated within existing procedures of investigating license applications when the consulted agency is also an acting agency.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97–21–030 (Order 95–16), § 197–11–912, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–912, filed 2/10/84, effective 4/4/84.]
WAC 197–11–914 SEPA fees and costs.
(1) Except for the costs allowed by this chapter (see, for example, sections WAC 197–11–080, 197–11–100, 197–11–340 (3)(a), 197–11–420(4), 197–11–440 (2)(l), 197–11–504, 197–11–508, 197–11–570, 197–11–600 (3)(c) pertaining to the cost of preparing environmental documents), these rules neither authorize nor prohibit the imposition of fees to cover the costs of SEPA compliance.
(2) A person required to pay an impact fee for system improvements under RCW 82.02.050 through 82.02.090 shall not be required to pay a fee under SEPA for the same system improvements.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97–21–030 (Order 95–16), § 197–11–914, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–914, filed 2/10/84, effective 4/4/84.]
WAC 197–11–916 Application to ongoing actions.
(1) Agency SEPA procedures shall apply to any proposal initiated after the effective date of the lead agency’s SEPA procedures or those of the agency proposing the action.
(2) For proposals made before the effective date of revised lead agency SEPA procedures, the revised procedures shall apply to those elements of SEPA compliance initiated after the procedures went into effect. Agency procedures adopted under RCW 43.21C.120 and these rules shall not be applied to invalidate or require modification of any threshold determination, EIS or other element of SEPA compliance undertaken or completed before the effective date of the procedures of the lead agency or of the agency proposing the action.
(3) Agencies are responsible for compliance with any statutory requirements that went into effect before the adoption of these rules and agency SEPA procedures (for example, the statutory requirements for appeals).
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–916, filed 2/10/84, effective 4/4/84.]
WAC 197–11–917 Relationship to chapter 197–10 WAC. Chapter 197–10 WAC, the original SEPA guidelines, has not been repealed because the existing guidelines of many agencies adopt portions of chapter 197–10 WAC by reference. Chapter 197–10 WAC also continues to apply for the next one hundred eighty days if an agency has not adopted procedures implementing SEPA (WAC 197–10–900(2) and 197–11–904). The department of ecology intends to repeal chapter 197–10 WAC one hundred eighty days after the effective date of chapter 197–11 WAC.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–917, filed 2/10/84, effective 4/4/84.]
WAC 197–11–918 Lack of agency procedures. If an agency fails to adopt rules, ordinances, resolutions, or regulations implementing SEPA within the one hundred eighty–day time period required by RCW 43.21C.120, the rules in this chapter shall be applied as practicable to the actions of such agency.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–918, filed 2/10/84, effective 4/4/84.]
WAC 197–11–920 Agencies with environmental expertise. The following agencies shall be regarded as possessing special expertise relating to those categories of the environment under which they are listed:
(1) Air quality.
(a) Department of ecology.
(b) Department of natural resources (only for burning in forest areas).
(c) Department of social and health services.
(d) Regional air pollution control authority or agency.
(2) Water resources and water quality.
(a) Department of game.
(b) Department of ecology.
(c) Department of natural resources (state–owned tidelands, shorelands, harbor areas or beds of navigable waters).
(d) Department of social and health services (public water supplies, sewer systems, shellfish habitats).
(e) Department of fisheries.
(3) Hazardous and toxic substances (including radiation).
(a) Department of ecology.
(b) Department of social and health services.
(c) Department of agriculture (foods or pesticides).
(d) Department of fisheries (introduction into waters).
(e) Department of game (introduction into waters).
(4) Solid and hazardous waste.
(a) Department of ecology.
(b) Department of fisheries (dredge spoils).
(c) Department of social and health services.
(d) Department of game (dredge spoils).
(5) Fish and wildlife.
(a) Department of game.
(b) Department of fisheries.
(6) Natural resources development.
(a) Department of commerce and economic development.
(b) Department of ecology.
(c) Department of natural resources.
(d) Department of fisheries.
(e) Department of game.
(7) Energy production, transmission and consumption.
(a) Department of ecology.
(b) Department of natural resources (geothermal, coal, uranium).
(c) State energy office.
(d) Energy facility site evaluation council.
(e) Utilities and transportation commission.
(8) Land use and management.
(a) Department of commerce and economic development.
(b) Department of ecology.
(c) Department of fisheries (affecting surface or marine waters).
(d) Department of natural resources (tidelands, shorelands, or state–owned or managed lands).
(e) Planning and community affairs agency.
(f) Department of game.
(9) Noise.
(a) Department of ecology.
(b) Department of social and health services.
(10) Recreation.
(a) Department of commerce and economic development.
(b) Department of game.
(c) Department of fisheries.
(d) Parks and recreation commission.
(e) Department of natural resources.
(11) Archaeological/historical.
(a) Office of archaeology and historic preservation.
(b) Washington State University at Pullman (Washington archaeological research center).
(12) Transportation.
(a) Department of transportation.
(b) Utilities and transportation commission.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–920, filed 2/10/84, effective 4/4/84.]
WAC 197–11–922 Lead agency rules. The rules for deciding when and how an agency is the lead agency (WAC 197–11–050) are contained in this part. The method and criteria for lead agency selection are in WAC 197–11–924. Lead agency rules for different types of proposals as well as for specific proposals are in WAC 197–11–926 through 197–11–940. Rules for interagency agreements are in WAC 197–11–942 through 197–11–944. Rules for asking the department of ecology to resolve lead agency disputes are in WAC 197–11–946. Rules for the assumption of lead agency status by another agency with jurisdiction are in WAC 197–11–948.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–922, filed 2/10/84, effective 4/4/84.]
WAC 197–11–924 Determining the lead agency.
(1) The first agency receiving an application for or initiating a nonexempt proposal shall determine the lead agency for that proposal, unless the lead agency has been previously determined, or the agency receiving the proposal is aware that another agency is determining the lead agency. The lead agency shall be determined by using the criteria in WAC 197–11–926 through 197–11–944.
(2) If an agency determines that another agency is the lead agency, it shall mail to such lead agency a copy of the application it received, together with its determination of lead agency and an explanation. If the agency receiving this determination agrees that it is the lead agency, it shall notify the other agencies with jurisdiction. If it does not agree, and the dispute cannot be resolved by agreement, the agencies shall immediately petition the department of ecology for a lead agency determination under WAC 197–11–946.
(3) Any agency receiving a lead agency determination to which it objects shall either resolve the dispute, withdraw its objection, or petition the department for a lead agency determination within fifteen days of receiving the determination.
(4) An applicant may also petition the department to resolve the lead agency dispute under WAC 197–11–946.
(5) To make the lead agency determination, an agency must determine to the best of its ability the range of proposed actions for the proposal (WAC 197–11–060) and the other agencies with jurisdiction over some or all of the proposal. This can be done by:
(a) Describing or requiring an applicant to describe the main features of the proposal;
(b) Reviewing the list of agencies with expertise;
(c) Contacting potential agencies with jurisdiction either orally or in writing.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–924, filed 2/10/84, effective 4/4/84.]
WAC 197–11–926 Lead agency for governmental proposals.
(1) When an agency initiates a proposal, it is the lead agency for that proposal. If two or more agencies share in the implementation of a proposal, the agencies shall by agreement determine which agency will be the lead agency. For the purposes of this section, a proposal by an agency does not include proposals to license private activity.
(2) Whenever possible, agency people carrying out SEPA procedures should be different from agency people making the proposal.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–926, filed 2/10/84, effective 4/4/84.]
WAC 197–11–928 Lead agency for public and private proposals. When the proposal involves both private and public activities, it shall be characterized as either a private or a public project for the purposes of lead agency designation, depending upon whether the primary sponsor or initiator of the project is an agency or from the private sector. Any project in which agency and private interests are too intertwined to make this characterization shall be considered a public project. The lead agency for all public projects shall be determined under WAC 197–11–926.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–928, filed 2/10/84, effective 4/4/84.]
WAC 197–11–930 Lead agency for private projects with one agency with jurisdiction. For proposed private projects for which there is only one agency with jurisdiction, the lead agency shall be the agency with jurisdiction.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–930, filed 2/10/84, effective 4/4/84.]
WAC 197–11–932 Lead agency for private projects requiring licenses from more than one agency, when one of the agencies is a county/city. For proposals for private projects that require nonexempt licenses from more than one agency, when at least one of the agencies requiring such a license is a county/city, the lead agency shall be that county/city within whose jurisdiction is located the greatest portion of the proposed project area, as measured in square feet. For the purposes of this section, the jurisdiction of a county shall not include the areas within the limits of cities or towns within such county.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–932, filed 2/10/84, effective 4/4/84.]
WAC 197–11–934 Lead agency for private projects requiring licenses from a local agency, not a county/city, and one or more state agencies. When a proposed private project requires nonexempt licenses only from a local agency other than a county/city and one or more state agencies, the lead agency shall be the local agency.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–934, filed 2/10/84, effective 4/4/84.]
WAC 197–11–936 Lead agency for private projects requiring licenses from more than one state agency.
(1) For private projects which require licenses from more than one state agency, but require no license from a county/city, the lead agency shall be one of the state agencies requiring a license, based upon the following order of priority:
(a) Department of ecology.
(b) Department of social and health services.
(c) Department of natural resources.
(d) Department of fisheries.
(e) Department of game.
(f) Utilities and transportation commission.
(g) Department of motor vehicles.
(h) Department of labor and industries.
(2) When none of the state agencies requiring a license is on the above list, the lead agency shall be the licensing agency that has the largest biennial appropriation.
(3) When, under subsection (1), an agency would be the lead agency solely because of its involvement in a program jointly administered with another agency, the other agency shall be designated the lead agency for proposals for which it is primarily responsible under agreements previously made between the two agencies for joint operation of the program.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–936, filed 2/10/84, effective 4/4/84.]
WAC 197–11–938 Lead agencies for specific proposals. Notwithstanding the lead agency designation criteria contained in WAC 197–11–926 through 197–11–936, the lead agency for proposals within the areas listed below shall be as follows:
(1) For all governmental actions relating to energy facilities for which certification is required under chapter 80.50 RCW, the lead agency shall be the energy facility site evaluation council (EFSEC); however, for any public project requiring such certification and for which the study under RCW 80.50.175 will not be made, the lead agency shall be the agency initiating the project.
(2) For all private projects relating to the use of geothermal resources under chapter 79.76 RCW, the lead agency shall be the department of natural resources.
(3) For all private projects requiring a license or other approval from the oil and gas conservation committee under chapter 78.52 RCW, the lead agency shall be the department of natural resources; however, for projects under RCW 78.52.125, the EIS shall be prepared in accordance with that section.
(4) For private activity requiring a license or approval under the Forest Practices Act of 1974, chapter 76.09 RCW, the lead agency shall be either the department of natural resources or the city/county where the project is located, as set forth below:
(a) The interagency agreements authorized by WAC 222–50–030 between the department of natural resources and other governmental agencies may be used to identify SEPA lead agency status for forest practice applications. If used, this agreement shall meet the requirements for a lead agency agreement in WAC 197–11–942.
(b) If no interagency agreement exists, the SEPA lead agency determination shall be based on information in the environmental checklist required as part of the forest practice application requiring SEPA review. The applicant shall, as part of the checklist, submit all information on future plans for conversion, and shall identify any known future license requirements.
(c) For any proposal involving forest practices (i) on lands platted after January 1, 1960, (ii) on lands beings converted to another use, or (iii) on lands which, pursuant to RCW 76.09.070 as now or hereafter amended, are not to be reforested because of the likelihood of future conversion to urban development, the applicable county or city is the lead agency if the county or city will require a license for the proposal. Upon receipt of a forest practice application and environmental checklist, natural resources shall determine lead agency for the proposal. If insufficient information is available to identify necessary permits, natural resources shall ask the applicant for additional information. If a permit is not required from the city/county, natural resources shall be lead agency. If a city/county permit is required, natural resources shall send copies of the environmental checklist and forest practice application together with the determination of the lead agency to the city/county.
(d) Upon receipt and review of the environmental checklist and forest practice application, the city/county shall within ten business days:
(i) Agree that a city/county license is required, either now or at a future point, and proceed with environmental review as lead agency.
(ii) Determine that a license is not required from the city/county, and notify natural resources that the city/county is not lead agency; or
(iii) Determine there is insufficient information in the environmental checklist to identify the need for a license, and either:
(A) Assume lead agency status and conduct appropriate environmental analysis for the total proposal;
(B) Request additional information from the applicant; or
(C) Notify natural resources of the specific additional information needed to determine permit requirements, who shall request the information from the applicant.
(5) For all private projects requiring a license or lease to use or affect state lands, the lead agency shall be the state agency managing the lands in question; however, this subsection shall not apply to the sale or lease of state–owned tidelands, harbor areas or beds of navigable waters, when such sale or lease is incidental to a larger project for which one or more licenses from other state or local agencies is required.
(6) For a pulp or paper mill or oil refinery not under the jurisdiction of EFSEC, the lead agency shall be the department of ecology, when a National Pollutant Discharge Elimination System (NPDES) permit is required under section 402 of the Federal Water Pollution Control Act (33 U.S.C. 1342).
(7) For proposals to construct a pipeline greater than six inches in diameter and fifty miles in length, used for the transportation of crude petroleum or petroleum fuels or oil or derivatives thereof, or for the transportation of synthetic or natural gas under pressure not under the jurisdiction of EFSEC, the lead agency shall be the department of ecology.
(8) For proposals that will result in an impoundment of water with a water surface in excess of forty acres, the lead agency shall be the department of ecology.
(9) For proposals to construct facilities on a single site designed for, or capable of, storing a total of one million or more gallons of any liquid fuel not under the jurisdiction of EFSEC, the lead agency shall be the department of ecology.
(10) For proposals to construct any new oil refinery, or an expansion of an existing refinery that shall increase capacity by ten thousand barrels per day or more not under the jurisdiction of EFSEC, the lead agency shall be the department of ecology.
(11) For proposed metal mining and milling operations regulated by chapter 78.56 RCW, except for uranium and thorium operations regulated under Title 70 RCW, the lead agency shall be the department of ecology.
(12) For proposals to construct, operate, or expand any uranium or thorium mill, any tailings areas generated by uranium or thorium milling or any low–level radioactive waste burial facilities, the lead agency shall be the department of social and health services.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97–21–030 (Order 95–16), § 197–11–938, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 95–07–023 (Order 94–22), § 197–11–938, filed 3/6/95, effective 4/6/95; 84–05–020 (Order DE 83–39), § 197–11–938, filed 2/10/84, effective 4/4/84.]
WAC 197–11–940 Transfer of lead agency status to a state agency. For any proposal for a private project where a city or town with a population of under five thousand or a county with a population under eighteen thousand would be the lead agency under WAC 197–11–928 through 197–11–938, and when one or more state agencies are agencies with jurisdiction over the proposal, such local agency may at its option transfer the lead agency duties to that state agency with jurisdiction appearing first on the priority listing in WAC 197–11–936. In such event, the state agency so determined shall be the lead agency and the agency making the transfer shall be an agency with jurisdiction. Transfer is accomplished by the county, city or town transmitting a notice of the transfer together with any relevant information it may have on the proposal to the appropriate state agency with jurisdiction. The local agency making the transfer shall also give notice of the transfer to any private applicant and other agencies with jurisdiction involved in the proposal.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97–21–030 (Order 95–16), § 197–11–940, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–940, filed 2/10/84, effective 4/4/84.]
WAC 197–11–942 Agreements on lead agency status. Any agency may assume lead agency status if all agencies with jurisdiction agree.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–942, filed 2/10/84, effective 4/4/84.]
WAC 197–11–944 Agreements on division of lead agency duties. Two or more agencies may by agreement share or divide the responsibilities of lead agency through any arrangement agreed upon. In such event, however, the agencies involved shall designate one of them as the nominal lead agency, which shall be responsible for complying with the duties of the lead agency under these rules. Other agencies with jurisdiction shall be notified of the agreement and determination of the nominal lead agency.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–944, filed 2/10/84, effective 4/4/84.]
WAC 197–11–946 DOE resolution of lead agency disputes.
(1) If the agencies with jurisdiction are unable to determine which agency is the lead agency under the rules, any agency with jurisdiction may petition the department for a determination. The petition shall clearly describe the proposal in question, and include a list of all licenses and approvals required for the proposal. The petition shall be filed with the department within fifteen days after receipt by the petitioning agency of the determination to which it objects. Copies of the petition shall be mailed to any applicant involved, as well as to all other agencies with jurisdiction over the proposal. The applicant and agencies with jurisdiction may file with the department a written response to the petition within ten days of the date of the initial filing.
(2) Within fifteen days of receipt of a petition, the department shall make a written determination of the lead agency, which shall be mailed to the applicant and all agencies with jurisdiction. The department shall make its determination in accordance with these rules and considering the following factors (which are listed in order of descending importance):
(a) Magnitude of an agency’s involvement.
(b) Approval/disapproval authority over the proposal.
(c) Expertise concerning the proposal’s impacts.
(d) Duration of an agency’s involvement.
(e) Sequence of an agency’s involvement.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–946, filed 2/10/84, effective 4/4/84.]
WAC 197–11–948 Assumption of lead agency status.
(1) An agency with jurisdiction over a proposal, upon review of a DNS (WAC 197–11–340) may transmit to the initial lead agency a completed "Notice of assumption of lead agency status." This notice shall be substantially similar to the form in WAC 197–11–985. Assumption of lead agency status shall occur only within the fourteen–day comment period on a DNS issued under WAC 197–11–340 (2)(a), or during the comment period on a notice of application when the optional DNS process in WAC 197–11–355 is used.
(2) The DS by the new lead agency shall be based only upon information contained in the environmental checklist attached to the DNS transmitted by the first lead agency or the notice of application if the optional DNS process is used, and any other information the new lead agency has on the matters contained in the environmental checklist.
(3) Upon transmitting the DS and notice of assumption of lead agency status, the consulted agency with jurisdiction shall become the "new" lead agency and shall expeditiously prepare an EIS. In addition, all other responsibilities and authority of a lead agency under this chapter shall be transferred to the new lead agency.
[Statutory Authority: 1995 c 347 (ESHB 1724) and RCW 43.21C.110. 97–21–030 (Order 95–16), § 197–11–948, filed 10/10/97, effective 11/10/97. Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–948, filed 2/10/84, effective 4/4/84.]
WAC 197–11–950 Severability. If any provision of this chapter or its application to any person or circumstance is held invalid, the remainder of this chapter or the application of the provision to other persons or circumstances shall not be affected.
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–950, filed 2/10/84, effective 4/4/84.]
WAC 197–11–955 Effective date.
(1) These rules shall become effective April 4, 1984.
(2) These rules shall apply to agency decision making under SEPA when one of the following occurs:
(a) An agency adopts policies, procedures, and practices for this chapter (WAC 197–11–902 and 197–11–904); or
(b) One hundred eighty days has elapsed from the effective date of these rules.
(3) The relationship of the effective date to ongoing actions is in WAC 197–11–916 and 197–11–917.
(4) Nothing in these rules shall delay agency compliance with any requirement in chapter 43.21C RCW, as amended, such as RCW 43.21C.031 and 43.21C.075 (as noted in WAC 197–11–916(3)).
[Statutory Authority: RCW 43.21C.110. 84–05–020 (Order DE 83–39), § 197–11–955, filed 2/10/84, effective 4/4/84.]