BP BHEAD INT H

AN ACT Relating to finfish; adding a new chapter to Title 90 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature finds that undesirable and heavy burdens are being imposed on persons proposing to develop and operate finfish facilities in Washington state as a result of the numerous and complicated permits and other government approvals that are presently required for the development and operation of the facilities. The legislature further finds that the present methods for obtaining public views in regard to applications to state agencies and local governments to develop and operate facilities are cumbersome and place undue hardship on members of the public thereby thwarting the public's ability to present views on the facilities.

(2) The purpose of this act is to:

(a) Provide for an optional procedure to coordinate all state agency and local government administrative decision-making procedures, and related quasi-judicial and judicial reviews, to assist those who, in the course of satisfying requirements of state agencies and local governments prior to undertaking a facility that contemplates the use of the state's air, land, or water resources, must obtain a number of permits and other government approvals;

(b) Provide to members of the public a better and easier opportunity to comprehensively present their views on a proposed facility concerning natural resources and related environmental matters prior to the making of decisions on the facility by state agencies and local governments;

(c) Provide to persons proposing to develop and operate a facility a greater degree of certainty in terms of permit requirements of state agencies and local governments;

(d) Provide better coordination and understanding between state agencies and local governments in the administration of various programs relating to air, water, and land resources; and

(e) Establish the opportunity for members of the public to obtain information pertaining to requirements of state and federal law that must be complied with prior to operating a facility in Washington state.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Board" means the pollution control hearings board.

(2) "Department" means the department of ecology.

(3) "Finfish rearing facility" or "facility" means those private and public facilities located in the state where finfish are fed, nurtured, held, maintained, or reared to reach a size for release or for market sale, to include an "upland finfish facility" as defined in RCW 90.48.215.

(4) "Permit" means a license, permit, certificate, certification, approval, compliance schedule, or other similar document pertaining to a regulatory or management program related to the protection, conservation, or use of, or interference with, the natural resources of land, air, or water in the state, that is required to be obtained from a state agency or local government prior to constructing or operating a finfish rearing facility in the state.

(5) "Person" means an individual, municipal, public, or private corporation, or other entity however denominated, including a state agency and local government entity.

(6) "State agency" means a state department, commission, board, or other agency or entity of the state.

NEW SECTION. Sec. 3. (1) A person proposing a facility may submit a master application to the department requesting the issuance of all permits necessary prior to the construction and operation of the facility in the state. The master application shall be on a form furnished by the department and shall contain precise information as to the location of the facility, and shall describe the nature of the facility including proposed discharges of wastes and contemplated uses of, or interferences with, natural resources.

(2)(a) Upon receipt of a properly completed master application, the department shall immediately notify in writing each state agency and local government, if applicable, having a possible interest in the master application arising from requirements pertaining to a permit program under its jurisdiction. The notification from the department shall be accompanied by a copy of the master application together with the date by which the state agency or local government shall respond to the notice. Each notified state agency or local government shall respond in writing to the department within the specified date, not exceeding fifteen days from receipt, as determined by the department, advising (i) whether the state agency or local government has an interest in the master application; and (ii) if the response to (a)(i) of this subsection is affirmative, the permit programs under the state agency's or local government's jurisdiction to which the facility described in the master application is pertinent, and whether, in relation to the master application, a public hearing as provided in section 4 of this act would be of value taking into consideration the overall public interest.

(b) Each notified state agency and local government that (i) responds within the specified date that it does not have an interest in the master application; or (ii) does not respond as required within the specified date, may not subsequently require a permit for the facility described in the master application. However, the bar to subsequently requiring a permit shall not be applicable if the master application provided the notified state agency or local government contained false, misleading, or deceptive information, or other information, or lack thereof, that would reasonably lead a state agency or local government to misjudge its interest in a master application.

(3) A local government shall process pursuant to the procedures provided by this chapter all permits under its jurisdiction that may be required from it for the facility described in the master application. The procedures established by this chapter shall satisfy the procedural requirements for any local government permit.

(4) After receiving the information regarding permits and applications provided by the department under subsection (2) of this section, the person may continue the process to apply for all or some of the permits required for the facility or choose not to use the process to apply for permits.

(5) The department shall send application forms relating to permits identified in affirmative responses under subsection (2) of this section to the applicant within five working days of the date specified by the department pursuant to subsection (2) of this section, with a direction to complete and return them to the department within a reasonable time as specified by the department and agreed to by the applicant.

(6) When the applications, properly completed, have been returned to the department, each of the applications shall be transmitted to the appropriate state agency and local government, if applicable, for the performance of its responsibilities of decision making in accordance with the procedures of this chapter.

NEW SECTION. Sec. 4. (1) The department, within ten days after receipt of all application forms from the applicant under section 3(5) of this act, shall cause a notice to be published at the applicant's expense once each week on the same day of the week for two consecutive weeks in a newspaper of general circulation within each county in which the facility is proposed to be constructed or operated. The notice shall describe the nature of the master application including, with reasonable specificity, the proposed facility, its location, the various permits applied for, and the agency having jurisdiction over each permit. Except as provided in subsection (2) of this section, the notice shall also state the time and place of a public hearing to be held on the project. It shall further state that a copy of the master application and a copy of all permit applications for the facility are available for public inspection at its planning department, or its equivalent in each county in which the facility is proposed to be constructed or operated, and at the Olympia office and appropriate regional office of the department.

(2) If the responses received by the department from state agencies and local governments under section 3(2) of this act unanimously state that a public hearing in relation to a master application would not be of value taking into consideration the overall public interest, and the department, after an evaluation, taking into consideration all interests involved concludes likewise, a hearing is not required pursuant to subsection (1) of this section. If this circumstance occurs, the provisions of subsection (1) of this section pertaining to the time and place of a public hearing shall not be included in the notice under subsection (1) of this section. Instead, the notice shall state that members of the public may present relevant views and supporting materials in writing to the department in relation to any of the permits applied for within twenty days after the last date of publication of the notice in a newspaper.

NEW SECTION. Sec. 5. (1) Except as provided in section 4(2) of this act, prior to a final decision on a permit application relating to a facility subject to the procedures of this chapter, a public hearing shall be held in the county in which all or a major part of the proposed project is to be constructed or operated, the hearing to be held pursuant to notice made under section 4(1) of this act. The hearing shall be held within thirty days of the date of the first publication of the notice under section 4(1) of this act. At the hearing, the applicant may submit relevant information and materials in support of the applications, and members of the public may present relevant views and supporting materials in relation to the considered applications.

(2) Each state agency and local government having a permit application before it as described in the notice in section 4(1) of this act, shall be represented at the public hearing by its chief administrative officer or a designee. The director of the department, or a hearing officer duly appointed by the director, shall chair the hearing. The representative of each state agency, other than the department, and each local government, shall conduct the portion of the hearing pertaining to submission of information, views, and supporting materials that are relevant to that state agency's or local government's application. The chair may, when appropriate, continue a hearing from time to time and place to place. The hearing shall be recorded in a manner suitable for transcription as determined by the department.

(3) No provisions of chapter 34.05 RCW shall apply to the hearing provided for by this section. The hearing shall be conducted for the purpose of obtaining information for the assistance of the state agencies and local governments, but shall not be considered a trial or adversarial proceeding.

(4) Upon completion of the public hearing, the chair, after consultation with state agency representatives, shall establish the date by which all state agencies and local governments shall forward their final decisions on applications before them to the department. This date shall not be more than ninety days after completion of the public hearing, unless the chair and the applicant mutually agree upon a later date. However, subsequent to the hearing, the chair and the applicant may agree, prior to the expiration of the ninety-day period, or the agreed upon later date, that the date may be extended for state agencies or local governments to forward their final decisions. If an agreement is reached, the affected state agencies or local governments shall be notified in writing by the chair. Failure of an agency to forward a decision by the established date constitutes unconditional approval by that state agency or local government of the application. Every final decision shall set forth the basis for the conclusion reached together with a final order granting or denying the permit application, subject to the conditions of approval as the agency or local government with jurisdiction may impose.

(5) In situations where notice is provided pursuant to section 4(1) of this act and no public hearing is conducted as provided in subsections (1) and (2) of this section, the department shall, within twenty-five days after the last notice is published in the newspaper, submit a copy of all views and supporting materials received by it to each state agency or local government having an application for a permit before it as described in the notice. The department shall concurrently notify each state agency or local government in writing of the date by which final decisions on applications shall be forwarded to the department. This date shall not be more than ninety days after the department has submitted a copy of all views and supporting materials received by it to each state agency or local government having an application for a permit before it, unless the department and the applicant mutually agree upon a later date. However, the information shall be available to all interested parties, and the chair and the applicant may agree, prior to the expiration of the ninety-day period or an agreed upon later date, to extend the date for agencies to forward their final decisions. If an agreement is reached, the affected state agencies and local governments shall be notified in writing by the chair. Failure of a state agency or local government to forward a decision by the established date shall constitute unconditional approval by that state agency or local government of the application. Each final decision shall consist of the same contents as provided for final decisions in subsection (4) of this section.

(6) When all final decisions are received by the department from the various participating state agencies and local governments, as provided in subsections (4) and (5) of this section, the department shall incorporate them, without modification, into one document and transmit it to the applicant either personally or by registered mail.

(7) A state agency or local government may, in the performance of its responsibilities, request or receive additional information from an applicant and others prior to or subsequent to a public hearing. However, the request or receipt of the information shall not otherwise effect the provisions of this chapter.

NEW SECTION. Sec. 6. A state agency or local government responding affirmatively as provided in section 3(2) of this act, may withdraw from further participation in the processing provided for in this chapter at any time by written notification to the department if it subsequently appears to the state agency or local government that it has no jurisdiction over the facility.

NEW SECTION. Sec. 7. (1) A person aggrieved by a final decision of a state agency under this chapter may obtain review by filing a request with the board within thirty days of the transmittal under section 5(6) of this act by the department of a final decision, except for a substantial development variance or conditional use permit pursuant to RCW 90.58.140 that shall be appealed to the shorelines hearings board within thirty days of transmittal of the final decision. In the event a request for review includes a final decision involving a substantial development permit, or a substantial development conditional use or variance permit appealable to the shorelines hearings board, and other final decisions or permits, there shall be a single staged hearing of the permits by the board and the shorelines hearings board. The board shall be authorized to adopt rules implementing the staged hearings and the filing of requests to eliminate all unnecessary duplication.

(2) A person appealing a final decision of a local government under this chapter shall obtain review in the same manner as would apply had the local government not been subject to this chapter.

NEW SECTION. Sec. 8. Notwithstanding any other statutes relating to the processing of permits, the procedures, including related timing requirements, and approval requirements set forth in this chapter shall be exclusive in relation to permits processed pursuant to this chapter.

NEW SECTION. Sec. 9. The rule of strict construction shall have no application to this chapter and it shall be liberally constructed to carry out its purpose.

NEW SECTION. Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 11. Sections 2 through 10 of this act shall constitute a new chapter in Title 90 RCW.