WAC 173-806-100   Mitigated DNS.  (1) As provided in this section and in WAC 197-11-350, the responsible official may issue a DNS based on conditions attached to the proposal by the responsible official or on changes to, or clarifications of, the proposal made by the applicant.

     (2) An applicant may request in writing early notice of whether a DS is likely under WAC 197-11-350. The request must:

     (a) Follow submission of a permit application and environmental checklist for a nonexempt proposal for which the department is lead agency; and

     (b) Precede the city's/county's actual threshold determination for the proposal.

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

     (a) Be written;

     (b) State whether the city/county currently considers issuance of a DS likely and, if so, indicate the general or specific area(s) of concern that is/are leading the city/county to consider a DS; and

     (c) State that the applicant may change or clarify the proposal to mitigate the indicated impacts, revising the environmental checklist and/or permit application as necessary to reflect the changes or clarifications.

     (4) As much as possible, the city/county 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 or amended environmental checklist, the city/county shall base its threshold determination on the changed or clarified proposal and should make the determination within fifteen days of receiving the changed or clarified proposal:

     (a) If the city/county 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/county shall issue and circulate a DNS under WAC 197-11-340(2).

     (b) If the city/county indicated areas of concern, but did not indicate specific mitigation measures that would allow it to issue a DNS, the city/county shall make the threshold determination, issuing a DNS or DS as appropriate.

     (c) 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 stormwater runoff" are inadequate, whereas proposals to "muffle machinery to X decibel" or "construct 200-foot stormwater retention pond at Y location" are adequate.

     (d) Mitigation measures which justify issuance of a mitigated DNS may be incorporated in the DNS by reference to agency staff reports, studies or other documents.

     (6) (Note: GMA counties/cities may use either Option 1 or 2; non-GMA counties/cities must use Option 1.) (Option 1) A mitigated DNS is issued under WAC 197-11-340(2), requiring a fourteen-day comment period and public notice. (Option 2) A mitigated DNS is issued under either WAC 197-11-340(2), requiring a fourteen-day comment period and public notice, or WAC 197-11-355, which may require no additional comment period beyond the comment period on the notice of application.

     (7) 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/county.

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

     (9) The city's/county's written response under subsection (2) of this section shall not be construed as a determination of significance. In addition, preliminary discussion of clarifications or changes to a proposal, as opposed to a written request for early notice, shall not bind the city/county to consider the clarifications or changes in its threshold determination.



[Statutory Authority: RCW 43.21C.130. 98-23-038 (Order 95-16 Phase 2), § 173-806-100, filed 11/10/98, effective 12/11/98; 84-13-036 (Order DE 84-25), § 173-806-100, filed 6/15/84. Formerly chapter 173-805 WAC.]