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1288 - Ordinance - Repealing Ordinance No. 983 and 1088 RE State Environmental Policy ActORDINANCE NO. 1288 AN ORDINANCE REPEALING ORDINANCE NO. 983 AND NO. 1088 (CHAPTER 14.04 OF THE PORT ORCHARD MUNICIPAL CODE) AND ADOPTING THE FOLLOWING ORDINANCE WHICH COMPLIES WITH THE NEW STATE ENVIRONMENTAL POLICY ACT RULES AND PROCEDURES. THE CITY COUNCIL OF THE CITY OF PORT ORCHARD DOES ORDAIN AS FOLLOWS: Section 1 - Repealer. Chapter 14.04 of the Port Orchard Municipal Code, as adopted in Ordinances No. 983 and No. 1088, is hereby REPEALED. Section 2 - Authority. The City of Port Orchard adopts this ordinance under the State Environmental Policy Act (SEPA), RCW 43.21C.120, and the SEPA rules, WAC 197-11-904. This ordinance contains this City's SEPA procedures and policies. The SEPA rules, chapter 197-11 WAC, must be used in conjunc- tion with this ordinance. Section 3 - Adoption By Reference. The City adopts the following sections of Chapter 173-806 of the Washington Administrative Code by reference (known as SEPA model ordinance): WAC 173-806-020 General Requirements - Purpose of this Part and Adoption by Reference. 173-806-030 Additional Definitions. 173-806-065 Categorical Exemptions and Threshold Determinations - Purpose of this Part and Adoption by Reference. 173-806-080 Use of Exemptions. 173-806-110 EIS - Purpose of this Part and Adoption by Reference. 173-806-120 Preparation of EIS - Additional Considerations. 173-806-128 Commenting - Adoption by Reference. 173-806-150 Using Existing Environmental Documents - Purpose of this Part and Adoption by Reference. 173-806-155 SEPA and Agency Decisions - Purpose of this Part and Adoption by Reference. 173-806-173 Notice/Statute of Limitations. 173-806-175 Definitions - Purpose of this Part and Adoption by Reference. 173-806-180 Categorical Exemptions - Adoption by Reference. 173-806-185 Agency Compliance - Purpose of this Part and Adoption by Reference. 173-806-220 Severability 173-806-230 Forms - Adoption by Reference. Section 4 - Designation Of Responsible Official. (1) For those proposals for which the City is the lead agency, the responsible official shall be the City Engineer except nonproject nature actions including adoptions or approvals of utility, transportation, solid -1- waste disposal rates and capital budgets. The responsible official shall be the City Clerk for the above excepted actions. (2) For all proposals for which the City is the lead agency, the responsible official shall make the threshold determination, supervise scoping and preparation of any required environmental impact statement (EIS), and perform any other functions assigned to the "lead agency" or "responsible official" by those sections of the SEPA rules that were adopted by reference in WAC 173-806-020. (3) The City shall retain all documents required by the SEPA rules (Chapter 197-11 WAC) and make them available in accordance with Chapter 42.17 RCW. Section 5 - Lead Agency Determination And Responsibilities. (1) The department within the City receiving an application for or initiating a proposal that involves a nonexempt action shall determine a lead agency for that proposal under WAC 197-11-050 and 197-11-922 through 197-11-940; unless the lead agency has been previously determined or the department is aware that another department or agency is in the process of determining the lead agency. (2) When the City is the lead agency for a proposal, the department receiving the application shall determine the responsible official who shall supervise compliance with the threshold deter- mination requirements and if an EIS is necessary, shall supervise preparation of the EIS. (3) When the City is not the lead agency for a proposal, all departments of the City shall use and consider, as appropriate, either the DNS or the final EIS of the lead agency in making decisions on the proposal. No City department shall prepare or require preparation of a DNS or EIS in addition to that prepared by the lead agency, unless required under WAC 197-11-600. In some cases, the City may conduct supplemental environmental review under WAC 197-11-600. (4) If the City or any of its departments receives a lead agency determination made by another agency that appears inconsistent with the criteria of WAC 197-11-922 through 197-11-940, it may object to the determination. Any objection must be made to the agency originally making the determination and resolved within fifteen days or receipt of the determination, or the City must petition the department of ecology for a lead agency determination under WAC 197-11-946 within the fifteen. -day time period. Any such petition on behalf of the City may be initiated by the responsible official with the concurrence of the mayor. (5) Departments of the City are authorized to make agreements as to lead agency status or shared lead agency duties for a proposal under WAC 197-11-942 and 197-11-944: PROVIDED, that the responsible official and any department that will incur responsibilities as the result of such agreement approve the agreement. (6) Any department making a lead agency determination for a private project shall require sufficient information from the applicant to identify which other agencies have jurisdiction over the proposal. Section 6 - Additional Considerations In Time Limits licable To The SEPA Process. The following time limits (expressed -2- in calendar days) shall apply when the City processes licenses for all private projects and those government proposals submitted to the City by other agencies: (1) Categorical exemptions. The City shall identify whether an action is categorically exempt within seven days of receiving a completed application. (2) Threshold determinations. (a) The City should complete threshold determinations that can be based solely upon review of the environmental checklist for the proposal within fifteen days of the date an applicant's adequate application and completed checklist are submitted. (b) When the responsible official requires further informa- tion from the applicant or consultation with other agencies with jurisdiction: (i) The City should request such further information within fifteen days of receiving an adequate application and completed environmental checklist; (ii) The City shall wait no longer than thirty days for a consulted agency to respond; (iii) The responsible official should complete the threshold determination within fifteen days of receiving the requested information from the applicant or the consulted agency. (c) When the City must initiate further studies, including field investigations, to obtain the information to make the threshold determination, the City should complete the studies within thirty days of receiving an adequate application and a completed checklist. (d) The City shall complete threshold determinations on actions where the applicant recommends in writing that an EIS be prepared, because of the probable significant adverse environmental impact(s) described in the application, within fifteen days of receiving an adequate application and completed checklist. Section 7 - Environmental Checklist. A completed environ- mental checklist (or a copy), in the form provided in WAC 197-11-960, shall be filed at the same time as an application for a permit, license, certificate, or other approval not specifically exempted in this ordinance; except, the checklist is not needed if the City/County and applicant agree an EIS is required, SEPA compliance has been completed, or SEPA compliance has been initiated by another agency. The City shall use the environmental checklist to determine the lead agency and, if the City is the lead agency, for the determining the responsible official and for making the threshold determination. Section 8 - Additional Elements To Be Covered In An EIS. The following additional elements are part of the environment for t e purpose of EIS content, but do not add to the criteria for threshold determinations or perform any other function or purpose under this ordinance: (1) Economy (2) Employment -3- (3) Sociological factors (4) Cost -benefit analysis. Section 9 - Public Notice. (1) Whenever the City issues a DNS under WAC 197-11-340(2) or a DS under WAC 197-11-360(3), the City shall give public notice as follows: (a) If public notice is required for a nonexempt license, the notice shall state whether a DS or DNS has been issued and when comments are due. (b) If no public notice is required for the permit or approval, the City shall give notice of the DNS or DS by: (i) Posting the property, for site -specific proposals, and (ii) Publishing notice in a newspaper of general circulation in the City area where the proposal is located. (c) Whenever the City issues a DS under WAC 197-11-360(3), the City shall state the scoping procedure for the proposal in the DS as required in WAC 197-11-408 and in the public notice. (2) Whenever the City issues a DEIS under WAC 197-11-455(5) or a SEIS under WAC 197-11-620, notice of the availability of those documents shall be given by: (a) Indicating the availability of the DEIS in any public notice required for a nonexempt license; and (b) Posting the property, for site -specific proposals; and (c) Publishing notice in a newspaper of general circulation in the City area where the proposal is located. (3) Whenever possible, the City shall integrate the public notice required under this section with existing notice procedures for the City's nonexempt permit(s) or approval(s) required for the proposal. (4) The City may require an applicant to complete the public notice requirements for the applicant's proposal at his or her expense. Section 10 - Designation Of Official To Perform Consulted Agency Responsibilities For The City. (1) The Mayor or his designee shall be responsible for preparation of written comments for the City in response to a consultation request prior to a threshold deter- mination, participation in scoping and reviewing a DEIS. (2) This person shall be responsible for the City's compliance with WAC 197-11-550 whenever the City is a consulted agency and is authorized to develop operating procedures that will ensure that responses to consultation requests are prepared in a timely fashion and include data from all appropriate departments of the City. Section 11 - Substantive Authority. (1) The policies and goals set forth in this ordinance are supplementary to those in the existing authorization of the City of Port Orchard. QC (2) The City may attach conditions to a permit or approval for a proposal so long as: (a) Such conditions are necessary to mitigate specific probable adviser environmental impacts identified in environmental documents prepared pursuant to this ordinance; (b) Such conditions are in writing; (c) The mitigation measures included in such conditions are reasonable and capable of being accomplished; (d) The City has considered whether other local, state or federal mitigation measures applied to the proposal are sufficient to mitigate the identified impacts; and (e) Such conditions are based on one or more policies in subsection (4) of this section and cited in the license or other decision document. (3) The City may deny a permit or approval for a proposal on the basis of SEPA so long as: (a) A finding is made that approving the proposal would result in probable significant adverse environmental impacts that are identified in a FEIS or final SEIS prepared pursuant to this ordinance; (b) A finding is made that there is no reasonable mitigation measures capable of being accomplised that are sufficient to mitigate the identified impact; and (c) The denial is based on one or more policies identified in subsection (4) of this section and idenitifed in writing in the decision document. (4) The City designates and adopts by reference the following policies as the basis for the City's exercise of authority pursuant to this section: (a) The City shall use all practical means, consistent with other essential considerations of state policy, to improve and coordinate plans, functions, programs, and resources to the end that the state and its citizens may: (i) Fulfill the repsonsibilities of each generation as trustee of the environment for succeeding generations; (ii) Assure for all people of Washington safe, healthful, productive and aesthetically and culterally pleasing surroundings; (iii) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences; (iv) Preserve important historic, cultural and natural aspects of our national heritage; (v) Maintain, whenever possible, an environment which supports diversity and variety of individual choice; -5- (vi) Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and (vii) Enhance the quality of renewable resources and approach the maximum attainable recyclying of depetable resources. (b) The City recognizes that each person has a fundamental and inalienable right to a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment. (c) The City adopts by reference the policies set forth in the Port Orchard Zoning Ordinance. (5) Except for permits or variances issued pursuant to the Shoreline Mangement Program adopted by the City, when any proposal or action not requiring a decision of the City is conditioned or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the City's board of adjustments and appeals. Such appeal may be perfected by the proponent or any aggrieved party by giving notice to the responsible official within ten days of the decision being appealed. Review by the City's board of adjustments and appeals shall be on a denovo basis. Section 12 - Environmentally Sensitive Areas. (1) The City Council shall designate environmentally sensitive areas under the standards of WAC 197-11-908 and shall file maps designating such areas, together with the exemptions from the list in WAC 197-11-908 that are inapplicable in such areas, with the City Clerk, the Kitsap County Auditor, and the Department of Ecology, Headquarters Office, Olympia, Washington. The environmentally sensitive area designations shall have full force and effect of law as of the date of filing. (2) The City shall treat proposals located wholly or partially within an environmentally sensitive area no differently than other proposals under this ordinance, making a threshold determination for such proposals. The City shall not automatically require an EIS for a proposal merely because it is proposed for location in an environmentally sensitive area. (3) Certain exemptions do not apply on lands covered by water, and this remains true regardless of whether or not lands covered by water are mapped. Section 13 - Fees. The City shall require the following fees for its activities in accordance with the provisions of this ordinance: (1) Threshold determination. For every environmental checklist the City will review when it is lead agency, the City shall collect a fee of $50.00 from the proponent of the proposal prior to undertaking the threshold determination. The time periods provided by this ordinance for making a threshold determination shall not begin to run until payment of the fee. (2) Environmental impact statement. (a) When the City is the lead agency for a proposal requiring an EIS and the responsible official determines that the EIS shall be 1Z prepared by employees of the City, the City may charge and collect a reasonable fee from any applicant to cover costs incurred by the City in preparing the EIS. The responsible official shall advise the applicant(s) of the projected cost for the EIS prior to actual preparation; the applicant shall post bond or otherwise ensure payment of such costs. (b) The responsible official may determine that the City will contract directly with a consultant for preparation of an EIS, or a portion of the EIS, for activities initiated by some persons or entity other than the City and may bill such costs and expenses directly to the applicant. The City may require the applicant to post bond or otherwise ensure payment of such costs. Such consultants shall be selected by mutual agreement of the City and applicant after a call for proposals. (c) If a proposal is modified so that an EIS is no longer required, the responsible official shall refund any fees collected under (a) or (b) of this subsection which remain after incurred costs are paid. (3) The City may collect a reasonable fee from an applicant to cover the cost of meeting the public notice requirements of this ordinance relating to the applicant's proposal. (4) The City shall not collect a fee for performing its duties as a consulted agency. (5) The City may charge any person for copies of any document prepared under this ordinance, and for mailing the document, in a manner provided by Chapter 42.17 RCW. PASSED by the City Council at a regular open public meeting thereof and APPROVED by the Mayor of the City of Port Orchard, Washington, this day of September, 1984. L SLIE WEATHERILL Mayor ATTEST: 1 �ICL(L°l� zrrc-�_. City Clerk APPROVED AS TO FORM: ttorney -7-