Effective Date of Rule: Thirty-one days after filing.

     Purpose: To amend outdated rules to respond to emerging needs of clients and stakeholders.

     Citation of Existing Rules Affected by this Order: Amending Chapter 173-98 WAC, Uses and limitations of the water pollution control revolving fund and chapter 173-95A WAC, Uses and limitations of the centennial clean water fund.

     Statutory Authority for Adoption: RCW 90.48.035 Rule-making authority.

      Adopted under notice filed as WSR 07-06-085 on March 7, 2007.

     Changes Other than Editing from Proposed to Adopted Version:      I. Introduction:

♦	Identify the reasons for adopting this rule (RCW 34.05.325 (6)(a)(i)): Explain the need for the rule or amendment. Discuss the legislative background/federal law/statutory authority.

     The purpose of the proposed rule changes is to respond to new funding initiatives and priorities identified by ecology, Environmental Protection Agency (EPA), and other stakeholders and clients. It has been almost seven years since the last time the rules were updated.

     Centennial clean water program (Centennial): In 1986 the Washington state legislature established the water quality account in chapter 70.146 RCW Water pollution control facilities financing. Centennial is a grant fund within the water quality account and ecology's water quality program has administered the fund since its inception. Through the Centennial fund, ecology provides grants to local governments and tribes for water pollution control facilities and nonpoint activities designed to prevent and control water pollution to Washington state's surface and ground water.

     Water pollution control revolving fund (revolving fund): The United States Congress established the revolving fund program as part of the Clean Water Act amendments in 1987. The EPA awards ecology annual grants for the purpose of making loans to local governments and tribes. Ecology provides a 20% match and capitalizes the grant funds to provide low-cost financing for projects such as publicly owned wastewater treatment facilities, nonpoint source pollution control, and comprehensive estuary conservation and management programs.

     Ecology is authorized to adopt rules under RCW 90.48.035 Rule-making authority.

     The department shall have the authority to, and shall promulgate, amend, or rescind such rules and regulations as it shall deem necessary to carry out the provisions of this chapter, including but not limited to rules and regulations relating to standards of quality for waters of the state and for substances discharged therein in order to maintain the highest possible standards of all waters of the state in accordance with the public policy as declared in RCW 90.48.010.

♦	Identify the adoption date of rule and effective date of rule.

     Adoption date: June 29, 2007.

     Effective date: July 30, 2007.

     Implementation would occur for the fiscal year 2009 funding cycle, which begins on September 1, 2007.

     II. Describe Differences Between Proposed and Final Rule

♦	Describe the differences between the text of the proposed rule as published in the Washington state register and the text of the rule as adopted, other than editing changes. State the reasons for the differences (RCW 34.05.325 (6)(a)(ii)):
♦	How to read the following differences in the proposed and final rule:

•	Listed first: Changes to the Washington state water pollution control revolving fund.
•	Listed second: Changes to the Centennial clean water program.
•	Official comments from clients and stakeholders are quoted exactly as spoken or written.
•	Deletions have strikethroughs and are in red font.
•	Additions are underlined and in green font.
•	The page number corresponding to the draft rule cited is included at the end of each explanation for change.

     Differences between proposed and final of chapter 173-98 WAC, Uses of the Washington state water pollution control revolving fund:

     WAC 173-98-030(59) Definitions: Deleted the word "this" in two places and replaced with the word "a loan" in both places (page 23).

     (59) Senior lien obligations means all revenue bonds and other obligations of the recipient outstanding on the date of execution of this a loan agreement (or subsequently issued on a parity therewith, including refunding obligations) or issued after the date of execution of this a loan agreement having a claim or lien on the gross revenue of the utility prior and superior to the claim or lien of the loan, subject only to maintenance and operation expense.

     WAC 173-98-030(64) Definitions: Deleted the word "protection" and replaced with the correct word "policy" (page 24).

     State environmental review process (SERP) means the National Environmental Protection Policy Act (NEPA)-like environmental review process adopted to comply with the requirements of the Environmental Protection Agency's Code of Regulations (40 CFR § 35.3140). SERP combines the State Environmental Policy Act (SEPA) review with additional elements to comply with federal requirements.

     WAC 173-98-040(2) Water pollution control revolving fund uses: Corrected language that was not clear and clarified eligibility by adding language from SEC. 601 (a) and (b) of the Clean Water Act (page 32).

     To provide loans for nonpoint source pollution control management programs including planning and implementing elements of the projects that implement the Washington's water quality management plan to control nonpoint sources of pollution, and for developing and implementing a conservation and management plans under section 320 of the act.

     WAC 173-98-100(6) Water pollution control revolving fund uses: Added language to clarify the intent of SEC. 601 of the Clean Water Act SEC (page 38).

     Confined animal feeding operations (CAFO) water pollution control projects located in federally designated national estuaries;

     WAC 173-98-110(31) Noneligible: Added language to avoid an unintentional categorical exclusion of water quantity (page 49).

     Water quantity or other water resource projects that solely address water quantity issues.

     WAC 173-98-300 (4)(a)(v) Wastewater treatment facilities construction: It was discovered that two words were missing that helped describe the calculations used to determine financial burden (page 55).

     The applicant's current and future debt service on the project;

     WAC 173-98-430(3) Repayment: Subsection (3) of this rule was deleted entirely, because it allowed ecology's director to extend the start date of loan repayment, which is not consistent with SEC. 603 (5)(1)(B) of the Clean Water Act. Deleting subsection (3) also changed the numbering order (page 63).

     (3) The director may extend the first repayment due date if it is not detrimental to the perpetuity of the revolving fund. However, this will not change the total length of the loan terms, rather, the loan amount will be amortized over a shorter period of time;

     WAC 173-98-520 (4)(a) Ceiling amounts: Added language to clarify intent. Left unchanged, this language could have been interpreted to limit funding to only 10% of the engineer's estimate instead of an additional 10% of the engineer's original estimate (page 69 and 70).

     If the low responsive responsible construction bid(s) exceeds the engineer's estimate of construction costs, the department may approve funding increases for up to ten percent of the engineer's original estimate;

     WAC 173-98-530(4) Step process for water pollution control facilities: This section had an incomplete sentence and a few words were missing. The incomplete sentence was deleted and words were added to complete the intent (pages 71 and 72).

     Combined steps for smaller design-construct projects (step four): In some cases, design and construction may be combined into one loan. Step four applicants must demonstrate that step two (design) can be completed and approved by the department within one of the timeframes the funding agreement is signed year of the effective date of the funding agreement. The total project costs for step four projects must be five million dollars or less.

     WAC 173-98-600(1) Design-build and design-build-operate project requirements: Changed the word "statues" to "statutes" (page 74).

     Design-build or design-build-operate projects must be consistent with applicable statues statutes, such as chapter 39.10 RCW, Alternative public works contracting procedures, chapter 70.150 RCW, Water Quality Joint Development Act, and/or chapter 35.58 RCW, Metropolitan municipal corporations.

     WAC 173-98-720(3) State environmental review process: Changed the word "significance" to "significant" (page 81).

     All mitigation measures committed to in documents developed in the SERP process, such as the environmental checklist, environmental report, SEPA environmental impact statement (EIS), the finding of no significance significant impact/environmental assessment, or record of decision/federal EIS will become revolving fund loan agreement conditions. Failure to abide by these conditions will result in withholding of payments and may result in immediate repayment of the loan.

     WAC 173-98-800 (2)(c) Starting a project: Copied exact language from WAC 173-98-220 and duplicated it here as subsection (2)(c), because it adds additional clarification. This is not new language (page 84).

     Loan offers identified on the "final offer and applicant list" will be effective for up to one year from the publication date of the "final offer and applicant list." Loan offers that do not result in a signed agreement are automatically terminated, see WAC 173-98-220 "Final offer and applicant list."

     Differences between proposed and final of chapter 173-95A WAC, Uses of the Centennial clean water program:

     WAC 173-95A-020(60) Definitions: Deleted the word "protection" and replaced with the correct word "policy" (page 19).

     State environmental review process (SERP) means the National Environmental Protection Policy Act (NEPA)-like environmental review process adopted to comply with the requirements of the Environmental Protection Agency's Code of Regulations (40 CFR § 35.3140). SERP combines the State Environmental Policy Act (SEPA) review with additional elements to comply with federal requirements.

     WAC 173-95A-120(26) Projects ineligible for centennial program funding: Added language to avoid an unintentional categorical exclusion of water quantity (page 32).

     Water quantity or other water resource projects that solely address water quantity issues.

     WAC 173-95A-400 (4)(a)(iii) Wastewater treatment facilities construction: It was discovered that two words were missing that helped describe the calculations used to determine financial burden (page 39).

     The applicant's current and future debt service on the project;

     WAC 173-95A-420(5) Storm water projects: It was discovered that this example did not capture the actual intent of the rule and therefore added no value. Language was clarified to capture the intent of WAC 173-95A-420(3) in this section. This clarification does not change the meaning of the rule (page 45 and 46).

     Matching requirements, percent of grant, and grant ceiling amounts. Storm water-hardship grants are fifty percent grants with a fifty percent cash-matching requirement.

     The maximum amount available for a storm water-hardship grant is $500,000.

     For example:

     When a grant applicant whose service area population is twenty-five thousand or less can demonstrate that its MHI is below sixty percent or less of the average statewide MHI, the applicant may be eligible for a fifty percent grant, not to exceed five hundred thousand dollars.

     WAC 173-95A-520 (5)(a) Ceiling amounts: Added language to clarify intent. Left unchanged, this language could have been interpreted to limit funding to only 10% of the engineer's estimate instead of an additional 10% of the engineer's original estimate (page 48 and 49).

     If the low responsive responsible construction bid(s) exceeds the engineer's estimate of construction costs, the department may approve funding increases for up to ten percent of the engineer's original estimate;

     WAC 173-95A-540(3) Step process for facilities: This section had an incomplete sentence and a few words were missing. The incomplete sentence was deleted and words were added to complete the intent (page 51).

     Combined steps for smaller design-construct projects (step four): In some cases, design and construction may be combined into one loan. Step four applicants must demonstrate that step two (design) can be completed and approved by the department within one of the timeframes the funding agreement is signed year of the effective date of the funding agreement. The total project costs for step four projects must be five million dollars or less.

     WAC 173-95A-700 (2)(c) Starting a project: Copied exact language from WAC 173-95A-320 and duplicated it here as subsection (2)(c), because it adds additional clarification. This is not new language (page 59).

     Loan and grant offers identified on the "final offer and applicant list" will be effective for up to one year from the publication date of the "final offer and applicant list." Loan and grant offers that do not result in a signed agreement are automatically terminated, see WAC 173-95A-320 "Final offer and applicant list."

     III. Summarize Comments

Comment Numbered by Commenter
Comment No.	First Name	Last Name	Organization	Page
1, 2	Cheryl	Sonnen	Asotin County Conservation District	9
3, 4, 5	Charlie	Kessler	Stevens County Conservation District	10-11
6	Dana	Cowger	Varela & Associates, Inc.	11
7	Dave	Rountry	Ecology, Southwest Regional Office	14
8	Russell	Clark	Mayor, City of Rock Island	14
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21	Robert	Masonis	Director, American Rivers, NW Region	15-21

Comment by Topic
Topic	Comment numbers correspond to commenter in the table above
Rule Amendment Process	1, 5, 6, 7, 9
Best Management Practices Eligibility	1, 3, 7
Allocation of Centennial Funds Activities/Facilities	1, 6, 7
On-Site Septic Repair and Replacement Local Loan Program	4
Definition of: -Water Pollution Control Activities	10, 11, 17, 18,
Definition of: -Low Impact Development	12
Land Acquisition for Wetland Preservation	13
Eligibility of Low Impact Development Techniques	14
Water Quantity	15, 19
The Growth Management Act	16, 20
Cost Effectiveness Analysis for Water Pollution Control facilities	21

♦	Summarize all comments received regarding the proposed rule and respond to comments by category or subject matter. You must indicate how the final rule reflects agency consideration of the comments or why it fails to do so (RCW 34.05.325 (6)(a)(iii)):

     Comment No. 1 (public hearing excerpt):

     Cheryl Sonnen: "Hi, I'm Cheryl Sonnen with the Asotin County Conservation District, and my address is 720 Sixth Street, Suite B in Clarkston, WA 99403. I have provided a lot of information to ecology requesting that the BMP list be expanded. And, I appreciate that ecology has listened to that request and that they've supported that in this rule to expand the BMPs on a case-to-case basis, and I will be working with my project managers and the regional folks to get more information on what those BMPs are. But I appreciate that that has been put into rule."

     Ecology's Response:

     Ecology appreciates this comment. It reflects the extensive outreach and collaborative approach used to involve clients and stakeholders in the development of these rules.

     Comment No. 2 (public hearing excerpt cont.):

     Cheryl Sonnen: Asotin County Conservation District.

     "I also wanted to let you know that I support the idea of expanding or having the flexibility between the facilities and the activities projects and the flexibility to shift that money as needed. Thank you."

     Ecology's Response:

     Currently two-thirds of the competitive funding is set aside for facilities hardship grants, and one-third is set aside for nonpoint activities grants.

     This new rule language will allow ecology to distribute competitive Centennial funds according to the scores given to projects on the final offer and applicant list. In other words, ecology will stream competitive funds to projects receiving the highest scores and in descending order. In addition, the two major project categories (activities and facilities) cannot receive more than two-thirds of the competitive funding. This will provide a safety net of at least one-third of the funding for each category. The remaining one-third will be allocated based on the competitive process.

     Ecology held outreach sessions regarding these rules at statewide conferences, such as the Infrastructure Assistance Coordinating Council and the Washington Association of District Employees. To help frame this issue, ecology conducted several client and stakeholder workshops and formed several workgroups involving internal staff and community representatives from the water quality financial assistance program. Based on this outreach, ecology is satisfied that this approach is fair and will result in the funding of the highest priority water quality projects for both activities and facilities projects.

     Comment No. 3 (public hearing excerpt):

     Charlie Kessler: "Charlie Kessler, Stevens County Conservation District, 232 Williams Lake Road, Colville, WA. I, too, would like to say that I appreciate ecology listening to the conservation districts when it came to talking about best management practices and putting some flexibility into the rule."

     Ecology's Response:

     Ecology appreciates this comment. It reflects the extensive outreach and collaborative approach used to involve clients and stakeholders in the development of these rules.

     Comment No. 4 (public hearing excerpt cont.):

     Charlie Kessler: Stevens County Conservation District.

     "Also, I appreciate what they are doing in the septic tank area, because that's one of the concerns we have in Stevens County; how to repair or replace failing septic systems for people who really can't afford it."

     Ecology's Response:

     In June of 2005, ecology sponsored a statewide workshop to learn more about the ongoing difficulties that local governments and tribes experience with failing on-site septic systems. In response to comments received at the workshop, ecology proposed rule revisions in September 2005, to expand its local loan program to include grants and offer public bodies more flexibility in managing local loan funds.

     Since the initiation of the rule amendment process, the 2006 Washington state legislature appropriated $7.5M to repair and replace on-site septic systems in the Puget Sound area as part of the Puget Sound initiative. This legislation compliments [complements] this rule. However, the appropriation is directed to the Puget Sound area.

     Ecology is very pleased to offer an expanded on-site repair and replacement local loan program that includes grants and loans awarded on a statewide basis, because failing on-site septic systems are a statewide water quality problem.

     Comment No. 5 (public hearing excerpt cont.):

     Charlie Kessler: Stevens County Conservation District.

     "So, I'm also a part of the Water Quality Financial Assistance Council and have appreciated the whole process of incorporating the comments of diverse groups throughout the state."

     Ecology's Response:

     Ecology recognizes and appreciates the advice and guidance provided by members of our financial assistance council. This comment reflects the extensive outreach and collaborative approach used to involve clients and stakeholders in the development of these rules.

     Comment No. 6 (written comment):

     Dana V. Cowger, P.E. -- Vice President, VERELA & ASSOCIATES, INC.

     Proposed rule revision: "Funding Allocation Revision For Facilities vs. Activities":

     "The proposed rule change will have the greatest impact on the small communities of Washington, many of which are under DOE mandated schedules for implementing treatment upgrades. This rule change will directly impact funding availability to these communities for required treatment improvements which will otherwise be unaffordable for the communities. Most of the small communities we represent will be directly impacted by this rule change.

     I believe this change is occurring without really hearing from the small communities in the state who are directly impacted by this change. The obvious question is, why have communities not commented to ecology? I believe their silence is not due to lack of interest but due to a lack of knowledge and understanding that this directly impacts them. Small communities, their staff and elected officials are made up of nontechnical volunteer citizens who work full-time jobs (apart from the city or town) while on the side carrying out city business as best as they can. They do not have access to the information and consequently they remain uninformed on the pertinent points of these rule changes and do not understand the impact to their communities. They do not have staff responsible for monitoring and staying current on these rules. They rely on ecology to craft a program which takes into account their community's best interests.

     Coupled with the fact that the rule change seems somewhat innocuous on surface, it therefore goes unnoticed to the average small city. This change will, in fact, reduce funding available for wastewater treatment plant upgrades for communities who have limited resources to fund upgrades. It is not prudent to make this change under these circumstances.

     Contrast the above situation with the group of organizations that represent nonpoint activity projects (where the funding will be diverted). Nonpoint projects are sponsored by more sophisticated groups consisting of conservation districts, health districts, fish and game departments, public utilities districts, Indian tribes, etc. These groups generally have full-time staff actively engaged and knowledgeable of the funding process, the rules and the funding allocations. In many cases the individuals seeking the funding have a personal stake in obtaining the funding (I suppose much like consulting firms like Varela & Associates) and whose ongoing salaries may be dependent on whether grants are received or not. These groups are informed and involved; they can and do offer supporting comments and input on the proposed rule changes.

     Due to the difference in the representation of the two contrasting interest groups (i.e. facilities vs. activities), the comments expected from either group can hardly be compared with equal weight. The point is that input is that the small communities being adversely impacted by the proposed rule change are not easily accessed by the process. Whereas the favorably affected projects have interest groups which are more involved and aware of the process.

     I believe adopting this rule revision amounts to an unfunded mandate by ecology. This is particularly pointed, given that ecology's funding for this program is not being cut (i.e. the legislature is not decreasing ecology's funding for this program). Rather, ecology (not the legislature) is reallocating existing funding from a mandated function (i.e. facilities) and redirecting it to activities projects which are generally more flexible regarding timeframe and optional regarding urgency and need for funds. I do not feel this is in the best interests of the small communities of Washington and their residents. I would propose that this change not be made unless at the same time a relaxation of the compliance deadlines facing the small communities can also be granted.

     I respect the fact that DOE, in its judgment, is making an effort to distribute the available funding to the best and highest use they deem appropriate. However, I do not feel this proposed reallocation of funding achieves that. It is detrimental to the efforts of small communities trying to comply with DOE imposed compliance deadlines toward achieving water quality goals."

     Ecology's Response:

     Ecology is proposing a competitive process in which applicants must compete for the funding on an equitable basis, rather than receive funding priority based on hardship status alone.

     Currently two-thirds of the competitive funding is set aside for facilities hardship grants, and one-third is set aside for nonpoint activities grants.

     This new rule language will allow ecology to distribute competitive Centennial funds according to the scores given to projects during a competitive project-rating process. In other words, ecology will stream competitive funds to projects receiving the highest scores and in descending order.

     To ensure funding availability for the two major project categories that ecology funds (activities and facilities), a limit is set on how much funding one category can receive. No category can receive more than two-thirds of the competitive funding, which means that at least one-third will be left for the other category.

     This will provide a safety net of at least one-third of the funding for each category as illustrated below:

     Facilities hardship projects - at least 1/3

     Activities-type projects - at least 1/3

     Activities or facilities projects - 1/3 (depending on project score)

     It is correct that this competitive method could result in less funding for hardship communities (as low as one-third of the competitive funding). It is also possible for hardship communities to receive two-thirds of the competitive funding. It depends on the score given for the application during the competitive evaluation process in relation to other water quality projects.

     Ecology is satisfied that this approach to the allocation of competitive Centennial funding will result in the funding of the highest priority water quality projects statewide.

     Also, it is important to note that this distribution only applies to competitive Centennial funds. This will not affect federal three hundred nineteen grants, legislative provisos, or dedicated funding that is appropriated through the legislature for small communities.

     Ecology is sensitive to the needs of small, financially distressed communities and the negative impact that high sewer user fees can pose. Ecology will continue to consider these impacts when it revises the water quality funding application for the fiscal year 2009 funding cycle.

     Outreach efforts:

     Communication and outreach efforts for these rules are a top priority to ecology.

     This rule amendment process included many outreach efforts, such as multiple statewide workshops, informational presentations, and sessions at conferences, such as the Infrastructure Assistance Coordinating Council and the Washington Association of District Employees.

     Ecology conducted several client and stakeholder workshops and formed several workgroups involving internal staff and community representatives from the water quality financial assistance program.

     Ecology staff spent extra effort to personally request comments and discuss possible impacts of the rule proposal with small communities at technical advisory and funding meetings whenever possible.

     To make the rule amendment process transparent, ecology staff solicited early comments to help guide its focus. Ecology received over one hundred initial comments resulting from early outreach efforts. Ecology staff posted all of the initial comments on its comprehensive water quality rule development web site at http://www.ecy.wa.gov/programs/wq/wqhome.html. This web site also provides access to rule amendment plans, publications, schedules, focus sheets, miscellaneous workshop materials, and staff contacts.

     Ecology staff shared the rule amendment web site address at every possible venue throughout the rule amendment process along with a detailed rule amendment schedule.

     Comment No. 7 (written comment):

     Dave Rountry, Water Cleanup Lead, Department of Ecology Southwest Region (written response).

     "Good to see the new option for expanding eligibility for Centennial grants beyond the traditional fencing and planting in riparian areas. My contacts at the CDs, the state conservation commission are glad to see that our advice for this proposed expansion is actually included in the rule changes.

     To paraphrase one comment I got from the commission, we appreciate that you listened to the needs of our CDs. I hope the rule is adopted, so we can move to the next level of discussion about translating the option into new BMP implementation. Thanks a lot."

     Ecology's Response:

     Ecology appreciates this comment. It reflects the extensive outreach and collaborative approach used to involve clients and stakeholders in the development of these rules.

     Comment No. 8 (written comment):

     Russell Clark, Mayor, City of Rock Island.

     "Please leave the Centennial clean water fund alone. The city of Rock Island needs this funding to build it [its] sewer plant. There isn't enough funding as things are."

     Ecology's Response:

     Please see the response to comment No. 6.

     Comment 9 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     "American Rivers is a national, not-for-profit river conservation organization with a mission to protect and restore healthy, natural rivers for the benefit of people, fish and wildlife. The Northwest regional office headquartered in Seattle, Washington has been advocating for effective river conservation policies for fifteen years since the office was opened in 1992.

     We appreciate the opportunity to comment on the proposed rule making regarding chapter 173-98 WAC, Uses and limitations of the water pollution control revolving fund and chapter 173-95A WAC, Uses and limitations of the centennial clean water fund.

     At the outset we wish to commend ecology for proposing to improve these rules in several respects that, if codified in the final rule, should benefit rivers and streams in Washington state. An integrated funding approach, expanding loan and grant funds to cover best management practices (BMPs), and linking loan eligibility to compliance with the Growth Management Act are all laudable objectives that would be advanced by the proposed rules. Our comments on specific proposed rule changes are set forth below."

     Ecology's Response:

     Ecology appreciates this comment. It reflects the extensive outreach and collaborative approach used to involve clients and stakeholders in the development of these rules.

     Comment No. 10 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-020: Definitions (Centennial)

     (64) "'Water pollution control activities' or 'activities'"

     "Subsection (a) should be expanded to include activities taken to prevent or mitigate pollution of surface water. The current proposal would limit such activities to those addressing only underground water."

     Ecology's Response:

     The current rule proposal does not limit funding to only underground water. The definition of water pollution control activities or activities is taken directly from state statute, RCW 70.146.020(5). It should be interpreted in its entirety and not be based on subsections. For example, subsection (a) should not be interpreted without subsection (b).

     Ecology's interpretation is consistent with the legislative statement of policy in RCW 70.146.010, which specifically refers to and includes "surface and underground waters." WAC 173-95A-020 and all of its subsections adequately include surface waters of the state.

     Comment No. 11 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-020: Definitions (Centennial)

     "Subsection (c) should be revised to include activities taken to restore the water quality of rivers and streams. The current proposal only includes activities to restore lake water quality."

     Ecology's Response:

     The current rule proposal does not limit funding to only lakes. Please see the response to comment No. 10.

     Comment No. 12 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-020: Definitions (Centennial)

     "A definition should be included for 'low impact development,' that should read as follows: 'A methodology that manages rainfall at the source using uniformly distributed decentralized micro-scale controls. LID's goal is to mimic a site's predevelopment hydrology by using design techniques that infiltrate, filter, store, evaporate, and detain runoff close to its source.'"

     Ecology's Response:

     Ecology appreciates the need to define low impact development (LID) for the purposes of its funding programs. The issues surrounding LID funding continue to emerge. Ecology is currently developing an enhanced funding program as a result of new legislative appropriations. This involves input from numerous ecology and other state and federal agencies, and clients and stakeholders.

     The definition provided by American Rivers will be provided to the LID workgroup for consideration.

     Ecology will likely use the information gathered by this LID workgroup to inform its decision on the definition of LID. Unfortunately, the definition will not be developed before the adoption date of this rule.

     Comment No. 13 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-100: Grant and loan eligible (Centennial)

     "(3) Land acquisition should be made not only for wetlands preservation, but also for the preservation of land that is critical for the preservation of natural hydrology and prevention of nonpoint pollution. This would include but not be limited to streamside buffers, streams, areas with a shallow water table, and key areas of groundwater infiltration. Subsection (d) should be expanded accordingly."

     Ecology's Response:

     It appears that the comment intended to reference WAC 173-95A-110 Loan only eligible. The proposed rule also allows land acquisition "for prevention of water pollution." This section should be interpreted in its entirety and not be based on subsections. For example, subsection (a) should not be interpreted without subsection (b).

     Comment No. 14 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-100: Grant and loan eligible. (Centennial)

     "'Low impact development' storm water management techniques as defined above should be added to the list of eligible projects."

     Ecology's Response:

     Ecology appreciates the need to define low impact development (LID) eligibilities for the purposes of its funding programs. The issues surrounding LID funding continue to emerge. Ecology is currently developing an enhanced funding program as a result of new legislative appropriations. This involves input from numerous ecology and other state experts, federal agencies, and clients and stakeholders.

     Ecology will consider the information gathered by this LID workgroup to inform its decision on determining future eligibility of LID and other storm water best management practices.

     Comment No. 15 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-120: Projects ineligible for Centennial program funding

     (26) "The categorical exclusion of projects addressing water quantity is too broad and should be revised. Projects that improve water quantity can significantly improve water quality as well by diluting pollutants and reducing water temperature - a major problem in the state's rivers and streams. Accordingly, projects that have both water quantity and significant water quality benefits should be eligible."

     Ecology's Response:

     Consistent with legislative intent, ecology considers the protection of water quality a primary objective when screening projects for funding (RCW 70.146.070). While it is correct that projects solely addressing water quantity issues would not be eligible for funding, ecology agrees that some water quality-focused project[s] may include minor elements of water quantity.

     Ecology updated the language in this rule to reflect this clarification.

     Comment No. 16 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-95A-610: The Growth Management Act (Centennial)

     "American Rivers strongly supports linking grant and loan eligibility with compliance with the Growth Management Act. While we support a limited exception where there is an urgent public health need or risk of substantial environmental degradation, the available assistance should be limited to a loan; grants should not be available. This would increase the likelihood of compliance with the GMA. Subsections (1) and (5) should be revised accordingly.

     The definition of compliance with GMA set forth in subsection (2) should be revised to expressly include required regulatory updates (e.g., critical areas ordinances).

     We propose the addition of another requirement in subsection (5) for funding eligibility where a county, city or town is not in compliance with the GMA. Eligibility for funds should be conditioned on an enforceable commitment by the governmental entity to come into compliance with GMA by a specified date agreed to by ecology. This requirement should be added in a new subsection (d)."

     Ecology's Response:

     This section implements the legislative requirements established by RCW 70.146.070 (2) and (3). While these suggestions are certainly interesting, we believe the elements you suggest extend beyond ecology's authority under the statute to link funding with GMA compliance. Should the statutory standards change, ecology will amend this rule accordingly.

     Comment No. 17 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-98-030 (Water Pollution Control Revolving Fund)

     "(68) 'Water pollution control activities' or 'activities'"

     "Subsection (a) should be expanded to include activities taken to prevent or mitigate pollution of surface water. The current proposal would limit such activities to those addressing only underground water."

     Ecology's Response:

     The current rule proposal does not limit funding to only underground water. The definition of water pollution control activities or activities is taken directly from state statute, RCW 90.50A.010(5). The rule should be interpreted in its entirety and not be based on subsections. For example, subsection (a) should not be interpreted without subsection (b).

     Ecology's interpretation is consistent with the legislative statement of policy in RCW 90.50A.005, which specifically refers to and includes "surface and underground waters."

     Comment No. 18 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-98-030 (Water Pollution Control Revolving Fund)

     "Subsection (c) should be revised to include activities taken to restore the water quality of rivers and streams. The current proposal only includes activities to restore lake water quality."

     Ecology's Response:

     The current rule proposal does not limit funding to only lakes. See response No. 17.

     Comment No. 19 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-98-110: Noneligible (Water Pollution Control Revolving Fund)

     (31) "The categorical exclusion of projects addressing water quantity is too broad and should be revised. Projects that improve water quantity can significantly improve water quality as well by diluting pollutants and reducing water temperature - a major problem in the state's rivers and streams. Accordingly, projects that have both water quantity and significant water quality benefits should be eligible."

     Ecology's Response:

     Consistent with legislative intent, ecology considers the protection of water quality a primary objective when screening projects for funding (RCW 90.50A.010; 90.50A.030(2)). While it is correct that projects solely addressing water quantity issues would not be eligible for funding, ecology agrees that some water quality-focused project[s] may include minor elements of water quantity.

     Ecology updated the language in this rule to reflect this clarification.

     Comment No. 20 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-98-710: The Growth Management Act (Water Pollution Control Revolving Fund)

     "American Rivers strongly supports linking grant and loan eligibility with compliance with the Growth Management Act. While we support a limited exception where there is an urgent public health need or risk of substantial environmental degradation, the available assistance should be limited to a loan; grants should not be available. This would increase the likelihood of compliance with the GMA. Subsections (1) and (5) should be revised accordingly.

     The definition of compliance with GMA set forth in subsection (2) should be revised to expressly include required regulatory updates (e.g., critical areas ordinances).

     We propose the addition of another requirement in subsection (5) for funding eligibility where a county, city or town is not in compliance with the GMA. Eligibility for funds should be conditioned on an enforceable commitment by the governmental entity to come into compliance with GMA by a specified date agreed to by ecology. This requirement should be added in a new subsection (d)."

     Ecology's Response:

     Please see the response to comment No. 16.

     Comment No. 21 (written comment):

     Robert J. Masonis, Senior Director, American Rivers, NW Region.

     WAC 173-98-730: Cost-effectiveness analysis for water pollution control facilities (Water Pollution Control Revolving Fund)

     "Subsection (2)(c) requires that 'environmental impact, energy impacts, growth impacts, and community priorities' be evaluated in a mandatory cost-effectiveness analysis, but describes such costs as 'nonmonetary.' While not all such costs can be quantified in monetary terms, some can. Accordingly, this provision should be revised to include both 'monetary and nonmonetary' costs.

     Moreover, subsection (1) should be revised to make clear that the nonmonetary costs are a factor that will be considered in determining the most cost-effective alternative/solution.

     Lastly, a new subsection (2)(d) should be added requiring the consideration of monetary and nonmonetary project benefits in the cost-effectiveness determination."

     Ecology's Response:

     Ecology has updated the information in the rule to address this comment.

     IV. Summary of public involvement opportunities

     Please provide a summary of public involvement opportunities for this rule adoption:

     Ecology conducted the following outreach:

√	Four initial statewide public comment meetings: October 11, 12, 19, and 20 (2005)
√	One additional alternative contracting (design-build) public comment meeting: July 12, 2006
√	Eight internal rule development multi-regional workgroup meetings: January 2006-July 2006
√	Four financial advisory council (FAC) briefings: September 2005-June 2007
√	Four FAC rule subcommittee workgroup events: February-July 2006
√	Four program management team briefing[s]: September 2005-June 2007
√	Two additional information-sharing presentations: March 2007 (Olympia and Spokane)

     Hearing dates and locations:

√	March 28 and 29, 2007: Olympia and Spokane
√	Four people in attendance at each hearing
√	See attached hearing memo [no information supplied by agency.]

     FOCUS sheet, news releases:

√	Mailed to over 2,165 people

     Advertisements and/or newspaper announcements (March 13, 2007):

√	Seattle Times
√	Spokesman Review
√	Yakima Herald
√	Daily Journal of Commerce

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 43, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 71, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 71, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: June 29, 2007.

Jay J. Manning

Director

OTS-9550.2

AMENDATORY SECTION(Amending Order 98-10, filed 11/24/98, effective 12/25/98)

WAC 173-98-010   ((What is the purpose of this chapter?)) Purpose.   ((The purpose of this chapter is to set forth limitations on the allocation and uses of moneys administered by the department of ecology from a special fund within the state treasury known as the state water pollution control revolving fund (SRF), as authorized by chapter 90.50A RCW. This fund provides financial assistance to applicants throughout the state of Washington who need such assistance to meet high priority water quality management needs.)) The purpose of this chapter is to set forth requirements for the department of ecology's administration of the Washington state water pollution control revolving fund, as authorized by chapter 90.50A RCW, water pollution control facilities financing. This fund is primarily comprised of federal capitalization grants, state matching moneys, and principal and interest repayments. It is used to provide loan assistance to public bodies for statewide, high-priority water quality projects that are consistent with the Clean Water Act, 33 U.S.C. 1251-1387.

[Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-010, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-010, filed 8/29/89, effective 9/29/89.]

     (54) "Water resource inventory areas," sometimes referred to as "WRIAs," means one of sixty-two watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in chapter 173-500 WAC as it existed on January 1, 1997. All parts of the state of Washington are located in a single water resource inventory area.)) (1) Where possible, the Washington state department of ecology combines the management of the Washington state water pollution control revolving fund with other funding programs, such as the centennial clean water program, and the federal Clean Water Act section 319 nonpoint source fund.

     (2) The integrated funding process includes a combined funding cycle, program guidelines, funding offer and applicant list, and statewide funding workshops.

[Statutory Authority: Chapter 90.50A RCW. 01-01-043 (Order 00-11), § 173-98-020, filed 12/8/00, effective 1/8/01. Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-020, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-020, filed 8/29/89, effective 9/29/89.]

     Loan terms and interest rates are as follows:

((Repayment Period	Interest Rate
Up to five years:	Thirty percent of the average market rate.
More than 5 but no more than 20 years:	Sixty percent of the average market rate.))

     The director of the department of ecology or the director's designee may approve lower interest rates for the annual funding application cycle if a financial analysis of the fund demonstrates that lower interest rates for that year are not detrimental to the perpetuity of the fund.

     (3) Financial hardship assistance for facilities construction.

     (a) Financial hardship assistance may be available to loan recipients for the existing residential need portion of a water pollution control facilities construction project if the project will cause a residential sewer user charge in excess of one and one-half percent of the median household income.

     (i) Median household income for this purpose is based on the most recent available census data, updated yearly based on inflation rates as measured by the Federal Bureau of Labor Statistics and published as the Consumer Price Index.

     (ii) If median household income data are not available for a community or if the community disputes the data used by the department, the department will allow a local government to conduct a scientific survey to determine the median household income.

     (iii) In situations where a project is proposed for an area with demographics which may not be representative of the entire census designated place, the department may require a scientific survey to determine the median household income.

     (iv) In rare cases where financial hardship cannot be established using residential user fees as a percent of median household income financial hardship determinations will be made on a case-by-case basis.

     (b) The need for hardship assistance is calculated on water pollution control facilities construction costs associated with existing residential need at the time an application for funding is received by the department. The analysis does not include costs for growth. For example, if an applicant applies for ten million dollars to finance facilities construction costs, where six million dollars is for existing residential need and the remaining four million dollars is for growth, the hardship analysis would be based on the six million dollars for existing residential need.

     (c) If the department determines that financial hardship exists, it may make changes to the offer of financial assistance in an attempt to lower the residential user charges below the financial hardship level for the existing residential need. These changes may include:

     (i) Changing the structure of the loan agreements with terms to lengthen the repayment period to a maximum of twenty years, lowering the interest rate, or a combination of a lower interest rate and an extended term; and, if this is not sufficient,

     (ii) Offering partial centennial grant funding as allowable under the provisions of chapter 173-95A WAC.

     (d) If an applicant is requesting financial hardship assistance, it should submit a completed financial hardship analysis form with its application for financial assistance.)) For the purposes of this chapter:

     (1) Act means the federal Clean Water Act (33 U.S.C. 1251-1387).

     (2) Activities see water pollution control activities.

     (3) Annual debt service means the amount of debt the applicant is obligated to pay on the loan in one year.

     (4) Applicant means a public body that has applied for funding.

     (5) Best management practices (BMP) means physical, structural, and/or managerial practices approved by the department that prevent or reduce pollutant discharges.

     (6) Ceiling amount means the highest level of financial assistance the department can provide to a recipient for an individual project.

     (7) Commercial, industrial, and institutional flows mean the portion of the total flows to a facility that originate from commercial establishments, industrial facilities, or institutional sources such as schools, hospitals, and prisons.

     (8) Competitive funding means moneys available for projects through a statewide evaluation process.

     (9) Completion date or expiration date means the date indicated in the funding agreement in which all milestones and objectives associated with the goals of the project are met.

     (10) Concentrated animal feeding operation (CAFO) means:

     (a) An animal livestock feeding operation that discharges animal waste to the waters of Washington state more frequently than the twenty-five-year, twenty-four-hour storm event;

     (b) An operation that is under a department administrative order, notice of violation, a National Pollution Discharge Elimination System permit;

     (c) An operation that will be required to have a National Pollution Discharge Elimination System permit coverage in the near future; or

     (d) An operation designated by the Environmental Protection Agency as polluting the waters of Washington state.

     (11) Conservation easement means a recorded legal agreement between a landowner and a public body to allow or restrict certain activities and uses that may take place on his or her property.

     (12) Conservation plan means a document that outlines how a project site will be managed using best management practices to avoid potential negative environmental impacts.

     (13) Construction means to erect, install, expand, or improve water pollution control facilities or activities. Construction includes construction phase engineering and preparation of the operation and maintenance manual.

     (14) Cost-effective alternative means the option selected in an approved facilities plan that meets the requirements of the project, recognizes environmental and other nonmonetary impacts, and offers the lowest cost over the life of the project (i.e., lowest present worth or equivalent annual value).

     (15) Department means the Washington state department of ecology.

     (16) Design means the preparation of the plans and specifications used for construction of water pollution control facilities or activities.

     (17) Director means the director of the Washington state department of ecology or his or her authorized designee.

     (18) Draft offer and applicant list means a catalog of all projects considered and proposed for funding based on an evaluation and the appropriations in the Washington state capital budget.

     (19) Easement means a recorded legal agreement between a public body and a landowner that allows the public body to have access to the landowner's property at any time to inspect, maintain, or repair loan-funded activities or facilities.

     (20) Effective date means the date the loan agreement is signed by the department's water quality program manager.

     (21) Eligible cost means the portion of the facilities or activities project that can be funded.

     (22) Enforcement order means an administrative requirement issued by the department under the authority of RCW 90.48.120 that directs a public body to complete a specified course of action within an explicit period to achieve compliance with the provisions of chapter 90.48 RCW.

     (23) Engineering report means a document that includes an evaluation of engineering and other alternatives that meet the requirements in chapter 173-240 WAC, Submission of plans and reports for construction of wastewater facilities.

     (24) Environmental degradation means the reduced capacity of the environment to meet social and ecological objectives and needs.

     (25) Environmental emergency means a problem that a public body and the department agree poses a serious, immediate threat to the environment or to the health or safety of a community and requires immediate corrective action.

     (26) Estimated construction cost means the expected amount for labor, materials, equipment, and other related work necessary to construct the proposed project.

     (27) Existing need means water pollution control facility's capacity reserved for all users, at the time of application, in order to meet the requirements of the water quality based effluent limitations in the associated National Pollution Discharge Elimination System or state waste discharge permit.

     (28) Existing residential need means water pollution control facility's capacity reserved for the residential population, at the time of application, in order to meet the water quality based effluent limitations in the associated National Pollution Discharge Elimination System or state waste discharge permit.

     (29) Facilities see water pollution control facility.

     (30) Facilities plan means an engineering report that includes all the elements required by the state environmental review process (SERP), National Environmental Policy Act (NEPA) as appropriate, other federal statutes, and planning requirements under chapter 173-240 WAC, Submission of plans and reports for construction of wastewater facilities.

     (31) Federal capitalization grant means a federal grant awarded by the U.S. Environmental Protection Agency (EPA) to the state to help expand the state water pollution control revolving fund.

     (32) Final offer and applicant list means a catalog of all projects considered and proposed for funding and those offered funding.

     (33) Force account means loan project work performed using labor, materials, or equipment of a public body.

     (34) Funding category see "water pollution control activities funding category" and "water pollution control facilities funding category."

     (35) Funding cycle means the events related to the competitive process used to allocate moneys from the Washington state water pollution control revolving fund, centennial clean water program, and the Clean Water Act section 319 nonpoint source fund for a state fiscal year.

     (36) General obligation debt means an obligation of the recipient secured by annual ad valorem taxes levied by the recipient and by the full faith, credit, and resources of the recipient.

     (37) Indirect cost means costs that benefit more than one activity of the recipient and not directly assigned to a particular project objective.

     (38) Infiltration and inflow means water, other than wastewater, that enters a sewer system.

     (39) Infiltration and inflow correction means the cost-effective alternative or alternatives and the associated corrective actions identified in an approved facilities plan or engineering report for eliminating or reducing the infiltration and inflow to existing sewer system.

     (40) Initiation of operation means the actual date the recipient begins using, or could begin using, the facilities for its intended purpose. This date may occur prior to final inspection or project completion.

     (41) Intended use plan (IUP) means a document identifying the types of projects proposed and the amount of all money available for financial assistance from the water pollution control revolving fund for a fiscal year as described in section 606(c) of the act.

     (42) Landowner agreement means a written arrangement between a public body and a landowner that allows the public body to have access to the property to inspect project-related components.

     (43) Loan agreement means a contractual arrangement between a public body and the department that involves a disbursement of moneys that must be repaid.

     (44) Loan default means failure to make a loan repayment to the department within sixty days after the payment was due.

     (45) Nonpoint source water pollution means pollution that enters any waters from widespread water-based or land-use activities. Nonpoint source water pollution includes, but is not limited to atmospheric deposition; surface water runoff from agricultural lands, urban areas, and forest lands; subsurface or underground sources; and discharges from some boats or other marine vessels.

     (46) Perpetuity means the point at which the water pollution control revolving fund is earning at least fifty percent of the market rate for tax-exempt municipal bonds on its loan portfolio.

     (47) Plans and specifications means the construction contract documents and supporting engineering documents prepared in sufficient detail to allow contractors to bid on and construct water pollution control facilities. "Plans and specifications" and "design" may be used interchangeably.

     (48) Preliminary project priority list means a catalog of all projects considered for funding based on the governor's budget and submitted to the Washington state legislature for its consideration during budget development.

     (49) Project means a water quality improvement effort funded with a grant or loan.

     (50) Project completion or expiration means the date indicated in the funding agreement in which all milestones and objectives associated with the goals are met.

     (51) Public body means a state of Washington county, city or town, conservation district, other political subdivision, municipal corporation, quasi-municipal corporation, those Indian tribes recognized by the federal government, or institutions of higher education when the proposed project is not part of the school's statutory responsibility.

     (52) Public health emergency means a situation declared by the Washington state department of health in which illness or exposure known to cause illness is occurring or is imminent.

     (53) Recipient means a public body that has an effective loan agreement with the department.

     (54) Reserve account means an account created by the recipient to secure the payment of the principal and interest on the water pollution control revolving fund loan.

     (55) Revenue-secured debt means an obligation of the recipient secured by a pledge of the revenue of a utility.

     (56) Revolving fund means the water pollution control revolving fund.

     (57) Riparian buffer or zone means a swath of vegetation along a channel bank that provides protection from the erosive forces of water along the channel margins and external nonpoint sources of pollution.

     (58) Scope of work means a detailed description of project tasks, milestones, and measurable objectives.

     (59) Senior lien obligations means all revenue bonds and other obligations of the recipient outstanding on the date of execution of a loan agreement (or subsequently issued on a parity therewith, including refunding obligations) or issued after the date of execution of a loan agreement having a claim or lien on the gross revenue of the utility prior and superior to the claim or lien of the loan, subject only to maintenance and operation expense.

     (60) Service area population means the number of people served in the area of the project.

     (61) Severe public health hazard means a situation declared by the Washington state department of health in which the potential for illness exists, but illness is not occurring or imminent.

     (62) Sewer means the pipe and related pump stations located on public property, or on public rights of way and easements that convey wastewater from buildings.

     (63) Side sewer means a sanitary sewer service extension from the point five feet outside the building foundation to the publicly owned collection sewer.

     (64) State environmental review process (SERP) means the National Environmental Policy Act (NEPA)-like environmental review process adopted to comply with the requirements of the Environmental Protection Agency's Code of Regulations (40 CFR § 35.3140). SERP combines the State Environmental Policy Act (SEPA) review with additional elements to comply with federal requirements.

     (65) Total eligible project cost means the sum of all expenses associated with a water quality project that are eligible for funding.

     (66) Total project cost means the sum of all expenses associated with a water quality project.

     (67) Water pollution means contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor of the waters; or any discharge of a liquid, gas, solid, radioactive substance, or other substance into any waters of the state that creates a nuisance or renders such waters harmful, detrimental, or injurious to the public, to beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

     (68) Water pollution control activities or activities means actions taken by a public body for the following purposes:

     (a) To prevent or mitigate pollution of underground water;

     (b) To control nonpoint sources of water pollution;

     (c) To restore the water quality of freshwater lakes; and

     (d) To maintain or improve water quality through the use of water pollution control facilities or other means.

     (69) Water pollution control activities funding category means that portion of the water pollution control revolving fund dedicated to nonpoint source pollution projects.

     (70) Water pollution control facility or facilities means any facilities or systems for the control, collection, storage, treatment, disposal, or recycling of wastewater, including, but not limited to, sanitary sewage, storm water, residential, commercial, industrial, and agricultural wastes. Facilities include all necessary equipment, utilities, structures, real property, and interests in and improvements on real property.

     (71) Water pollution control facilities funding category means that portion of the water pollution control revolving fund dedicated to facilities projects.

     (72) Water pollution control revolving fund (revolving fund) means the water pollution control revolving fund established by RCW 90.50A.020.

     (73) Water resource inventory area (WRIA) means one of the watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in the Water Resources Management Act of 1971 (chapter 173-500 WAC).

[Statutory Authority: Chapter 90.50A RCW. 01-01-043 (Order 00-11), § 173-98-030, filed 12/8/00, effective 1/8/01; 00-09-010 (Order 00-02), § 173-98-030, filed 4/7/00, effective 5/8/00. Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-030, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-030, filed 8/29/89, effective 9/29/89.]

     (7) The final intended use plan will be issued no later than sixty days after the end of the public review and comment period. The final intended use plan will reflect any changes made as a result of public comments or other information received during the public review and comment period, and will include a responsiveness summary. The final intended use plan will generally list projects in the order that projects may be offered financial assistance.)) The revolving fund may be used for the following purposes:

     (1) To provide loans to finance the planning, design, and/or construction of water pollution control facilities;

     (2) To provide loans for nonpoint source pollution control management projects that implement the Washington's water quality management plan to control nonpoint sources of pollution, and for developing and implementing a conservation and management plan under section 320 of the act;

     (3) To provide loans for up to twenty years reserve capacity for water pollution control facilities;

     (4) To buy or refinance the debt obligations incurred by applicants after March 7, 1985, for the construction of water pollution control facilities;

     (5) To guarantee or purchase insurance for local obligations to improve credit market access or reduce interest rates;

     (6) As a source of revenue or security for the payment of principal and interest on revenue or general obligation bonds issued by the state if the proceeds of those bonds will be deposited in the revolving fund; and

     (7) To finance administration costs incurred by the department as authorized by the act and chapter 90.50A RCW.

[Statutory Authority: Chapter 90.50A RCW. 01-01-043 (Order 00-11), § 173-98-040, filed 12/8/00, effective 1/8/01. Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-040, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-040, filed 8/29/89, effective 9/29/89.]

ELIGIBLE PROJECT TYPE
AMENDATORY SECTION(Amending Order 98-10, filed 11/24/98, effective 12/25/98)

WAC 173-98-100   ((How do recipients comply with the state environmental review process?)) Eligible.   (((1) All recipients which receive SRF loans must meet the provisions of the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and the SEPA rules, chapter 197-11 WAC. Additional provisions are currently needed by federal law under Title VI of the act to satisfy the state's responsibility to help ensure that recipients comply with the National Environmental Policy Act (NEPA) and other applicable environmental laws, regulations, and executive orders. The lead agency (WAC 197-11-050(2)) responsible for SEPA compliance for each project under the SRF program shall also comply with the following additional provisions. When a categorical exclusion, finding of no significant impact, or a record of decision has been issued under NEPA for the same project scope of work, no additional environmental documentation is required. Applicants will need to adopt the federal environmental documentation to meet their responsibilities as required by SEPA rules WAC 197-11-600, 197-11-610, and 197-11-630. If federal environmental documentation has not been submitted for approval to the appropriate federal agency, applicants and designated lead agencies must:

     (a) Consult with the department before determining that the project is categorically exempt from SEPA and obtain concurrence that the project meets the criteria for a categorical exemption (WAC 197-11-305) and give public notice of the categorical exemption by publishing a notice in a newspaper of area-wide circulation. This notice shall include the locations where the public may review the facilities plan and other environmental information.

     (b) Consult with the department prior to issuing a threshold determination (WAC 197-11-330), and submit a copy of the environmental checklist (WAC 197-11-315) and a recommended threshold determination to the department.

     (c) Obtain written concurrence from the director with the recommended threshold determination as to whether a determination of nonsignificance (DNS) (WAC 197-11-340) or an environmental impact statement (EIS) is to be issued prior to issuing the actual document.

     (d) Issue the threshold determination, determination of nonsignificance (DNS) or determination of significance (DS) (WAC 197-11-360) and submit copies to the department; two copies shall be sent to the department's environmental review section and one copy to the regional water quality program (WQ) of the department. The director must concur in writing with the findings of the checklist and DNS if a DNS is issued.

     (e) Give public notice of the threshold determination by publishing a notice in a newspaper of area-wide circulation. This notice shall include the locations where the public may review the threshold determination, facilities plan, and other environmental information.

     (f) Distribute copies of the threshold determination and supporting documents to other affected local, state, and federal agencies, Indian tribes, and the public.

     (g) When a DS is issued, the lead agency will develop the final scope of elements to be addressed in the environmental impact statement (EIS) and obtain written concurrence from the director. The department shall be consulted throughout the EIS process.

     (h) Distribute copies of the draft and final EIS to the department; two copies shall be sent to both the environmental review section and the department's water quality program.

     (i) Give public notice of the draft and final EIS by publishing notices in a newspaper of area-wide circulation. Notices shall include the locations where the public may review the draft and final EIS or obtain copies.

     (j) Distribute copies of the draft and final EIS to other affected local, state, and federal agencies, Indian tribes, and the public.

     (k) The director must concur in writing with the finding of the final EIS.

     (2) The lead agency shall issue a notice of action for the final EIS regarding the preferred alternative in accordance with RCW 43.21C.080, WAC 197-11-680, and 197-11-990.

     (3) A cost-effectiveness analysis will be required for all SRF projects. Planning must include a comparison of the total cost, i.e., capital, operation and maintenance, and replacement costs of the project with other alternatives, including the no action alternative. The comparison of the total costs, e.g., total present worth or annual equivalent costs of projects for the planning period, must be included. Cost-effective analyses must also include nonmonetary cost of the project, i.e., the environmental impact, resource utilization, implementability, etc. This analysis must be included in the planning document and must be summarized in the EIS or DNS. Financial assistance under the SRF program will be offered to the cost-effective solution to the water pollution control problem.

     (4) All mitigation measures committed to in the environmental checklist or state EIS, or in the finding of no significance impact/environmental assessment or record of decision/federal EIS (for federally approved projects) will become SRF loan agreement conditions. Applicants must complete all mitigation measures required. Failure to abide by these conditions will result in withholding of payments and may result in immediate repayment of the loan.

     (5) The applicant must comply with the requirements of applicable environmental laws, regulations, and executive orders. Concurrence from the director will be based on best available information provided by the applicant. The department is not responsible for concurrence based on erroneous information.)) Certain projects or project elements, including, but not limited to the following, may be eligible for loan assistance:

     (1) Aquatic plant control when the water quality degradation is due to the presence of aquatic plants, and the source(s) of pollution is addressed sufficiently to ensure that the pollution is eliminated;

     (2) BMP implementation on private property:

     (a) Best management practices that consist of new, innovative, or alternative technology not yet demonstrated in the department's region in which it is proposed;

     (b) Best management practices in the riparian buffer or zone, such as revegetation or fence construction and where a conservation easement or landowner agreement is granted by the landowner; and

     (c) Other water quality best management practices that are evaluated and approved by the department on a case-by-case basis, and where a conservation easement or landowner agreement is granted by the landowner.

     (3) BMP implementation on public property;

     (4) Capacity for growth. Loans for up to twenty years capacity for water pollution control facilities. Capacity in excess of the twenty year design capacity are not eligible;

     (5) Computer equipment and software specific to the funded project and preapproved by the department;

     (6) Confined animal feeding operations (CAFO) water pollution control projects located in federally designated national estuaries;

     (7) Conservation planning;

     (8) Design-build or design-build-operate (alternative contracting/service agreements) for water pollution control facilities and other alternative public works contracting procedures;

     (9) Diagnostic studies to assess current water quality;

     (10) Education and outreach efforts for the public;

     (11) Environmental checklists, assessments, and impact statements necessary to satisfy requirements for the SEPA, the NEPA, and the SERP;

     (12) Equipment and tools as identified in a loan agreement;

     (13) Facilities for the control, storage, treatment, conveyance, disposal, or recycling of domestic wastewater and storm water for residential, and/or a combination of residential, commercial, institutional and industrial:

     (a) Planning:

     (i) Comprehensive sewer planning, including wastewater elements of capital facilities planning under the growth management act;

     (ii) Storm water planning;

     (iii) Facilities planning for water pollution control facilities;

     (b) Design preparation of plans and specifications for water pollution control facilities;

     (c) Construction of:

     (i) Facilities for the control, storage, treatment, conveyance, disposal, or recycling of domestic wastewater and storm water;

     (ii) Combined sewer overflow abatement;

     (iii) Facilities to meet existing needs plus twenty years for growth;

     (iv) Side sewers or individual pump stations or other appurtenances on private residential property if solving a nonpoint source pollution problem, such as failing on-site septic systems;

     (v) Side sewers existing on public property or private property (with an easement) to correct infiltration and inflow and replace existing water pollution control facilities; and

     (vi) New sewer systems to eliminate failing or failed on-site septic systems;

     (d) Value engineering for water pollution control facilities;

     (e) Design or construction costs associated with design-build or design-build-operate contracts.

     (14) Ground water protection activities such as wellhead protection and critical aquifer recharge area protection;

     (15) Hardship assistance for wastewater treatment facilities construction, storm water, and on-site septic system repair and replacement;

     (16) Indirect costs as defined in the most recently updated edition of Administrative Requirements for Ecology Grants and Loans (publication #91-18);

     (17) Lake implementation and associated planning activities on lakes with public access;

     (18) Land acquisition:

     (a) As an integral part of the treatment process (e.g., land application); or

     (b) For wetland habitat preservation;

     (19) Landscaping for erosion control directly related to a project, or site-specific landscaping in order to mitigate site conditions and comply with requirements in the SERP;

     (20) Legal expenses will be determined on a case-by-case basis, such as development of local ordinances, use of a bond counsel, review of technical documents;

     (21) Light refreshments for meetings when preapproved by the department;

     (22) Monitoring BMP effectiveness;

     (23) Monitoring equipment used for water quality assessment;

     (24) Monitoring water quality;

     (25) Model ordinances development and dissemination of model ordinances to prevent or reduce pollution from nonpoint sources;

     (26) On-site septic systems:

     (a) On-site septic system repair and replacement for residential and small commercial systems;

     (b) On-site wastewater system surveys;

     (c) Local loan fund program development and implementation;

     (27) Planning comprehensive basin, watershed, and area-wide water quality development;

     (28) Refinancing of water pollution control facility debt;

     (29) Riparian and wetlands habitat restoration and enhancement, including revegetation;

     (30) Sales tax;

     (31) Spare parts initial set of spare parts for equipment that is critical for a facility to operate in compliance with discharge permit requirements;

     (32) Stream restoration projects;

     (33) Total maximum daily load study development and implementation;

     (34) Training to develop specific skills that are necessary to directly satisfy the funding agreement scope of work. Training, conference registration or annual meeting fees must be preapproved by the department;

     (35) Transferring ownership of a small wastewater system to a public body;

     (36) Wastewater or storm water utility development;

     (37) Wastewater or storm water utility rate or development impact fee studies;

     (38) Water quality education and stewardship programs.

[Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-100, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-100, filed 8/29/89, effective 9/29/89.]

     (6) No defeasance or advance refunding. So long as the department holds a loan, the recipient shall not be entitled to, and shall not effect, its economic defeasance or advance refunding.)) Certain projects or project elements, including but not limited to the following are not eligible for loan assistance:

     (1) Abandonment or demolition of existing structures not interfering with proposed construction of a wastewater or storm water treatment facility;

     (2) Acts of nature that alter the natural environment, thereby causing water quality problems;

     (3) Aquatic plant control for aesthetic reasons, navigational improvements, or other purposes unrelated to water quality;

     (4) Bond costs for debt issuance;

     (5) Bonus or acceleration payments to contractors to meet contractual completion dates for construction;

     (6) Commercial, institutional or industrial wastewater pollution control activities or facilities or portions of those facilities that are solely intended to control, transport, treat, dispose, or otherwise manage wastewater;

     (7) Commercial, institutional or industrial monitoring equipment for sampling and analysis of discharges from municipal water pollution control facilities;

     (8) Commercial, institutional or industrial wastewater pretreatment;

     (9) Compensation or damages for any claim or injury of any kind arising out of the project, including any personal injury, damage to any kind of real or personal property, or any kind of contractual damages, whether direct, indirect, or consequential;

     (10) Cost-plus-a-percentage-of-cost contracts (also known as multiplier contracts), time and materials contracts, and percent-of-construction contracts in facilities projects;

     (11) Engineering reports;

     (12) Fines and penalties due to violations of or failure to comply with federal, state, or local laws;

     (13) Flood control, projects or project elements intended solely for flood control;

     (14) Funding application preparation for loans or grants;

     (15) Interest on bonds, interim financing, and associated costs to finance projects;

     (16) Landscaping for aesthetic reasons;

     (17) Legal expenses associated with claims and litigation;

     (18) Lobbying or expenses associated with lobbying;

     (19) Mitigation unless it addresses water quality impacts directly related to the project, and determined on a case-by-case basis;

     (20) Office furniture not included in the recipient's indirect rate;

     (21) Operating expenses of local government, such as the salaries and expenses of a mayor, city council member, city attorney, etc.;

     (22) Operation and maintenance costs;

     (23) Overtime differential paid to employees of public body to complete administrative or force account work;

     (24) Permit fees;

     (25) Personal injury compensation or damages arising out of the project, whether determined by adjudication, arbitration, negotiation, or other means;

     (26) Professional dues;

     (27) Reclamation of abandoned mines;

     (28) Refinancing of existing debt;

     (29) Solid or hazardous waste cleanup;

     (30) Vehicle purchase except for vehicles intended for the transportation of liquid, dewatered sludge, septage, or special purpose vehicles as approved by the department; and

     (31) Water quantity or other water resource projects that solely address water quantity issues.

[Statutory Authority: Chapter 90.50A RCW. 01-01-043 (Order 00-11), § 173-98-110, filed 12/8/00, effective 1/8/01. Statutory Authority: RCW 43.21.080 and chapters 34.05 and 90.50A RCW. 98-24-036 (Order 98-10), § 173-98-110, filed 11/24/98, effective 12/25/98. Statutory Authority: Chapter 90.50A RCW. 89-18-019 (Order 89-34), § 173-98-110, filed 8/29/89, effective 9/29/89.]

HOW TO APPLY FOR FUNDING
NEW SECTION
WAC 173-98-200   Application for funding.   (1) To apply for funding the applicant must submit a completed application to the department. The department will provide the application on the agency web site.

     (2) The applicant may be asked to provide the following project information:

     (a) Basic information such as names of contacts, addresses, and other tracking information;

     (b) Project summary;

     (c) Project goals, objectives, and milestones;

     (d) Overall water quality benefits;

     (e) Public health benefits;

     (f) Sources of pollution addressed;

     (g) How the project will address state and federal mandates, elements in "Washington's water quality plan to control nonpoint sources of pollution," or other such plans;

     (h) Performance measures and postproject assessment monitoring;

     (i) Readiness to proceed, likelihood of success, and measures of success specific to the project;

     (j) Local initiatives, commitments, or priorities related to the project; or

     (k) Other information requested by the department.

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     (2) Ecology will provide the following services:

     (a) Make available the application and applicable guidelines before the associated funding cycle begins;

     (b) Conduct at least one application workshop in each of ecology's four regions;

     (c) Conduct preapplication workshops to discuss regional level priorities if applicable;

     (d) After the application deadline, complete an initial review of project proposals for funding eligibility;

     (e) Request other agencies to provide evaluation assistance as needed;

     (f) Rate and rank the applications using a consistent scoring system;

     (g) Prepare a combined preliminary project priority list, after evaluation and scoring of all applications;

     (h) Submit preliminary project priority list to the state legislature for budget consideration;

     (i) Develop a combined draft offer and applicant list and a draft revolving fund IUP;

     (j) Facilitate a public review and comment period for the combined draft offer and applicant list and revolving fund IUP;

     (k) Sponsor at least one public meeting to explain the combined draft offer and applicant list and the revolving fund IUP;

     (l) Develop a combined "final offer and applicant list" and a final revolving fund IUP. Public comments collected during draft public review period will be incorporated and result in a responsiveness summary;

     (m) Issue funding decision letters to all applicants; and

     (n) Negotiate, develop, and finalize loan agreements.

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     (2) The IUP is issued in conjunction with the "final offer and applicant list."

     (3) It contains a detailed report of how the department expects to allocate moneys available in the current funding cycle.

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FINANCIAL HARDSHIP ASSISTANCE
NEW SECTION
WAC 173-98-300   Wastewater treatment facilities construction.   (1) There are three primary factors considered in determining hardship funding for the construction portion of wastewater treatment facilities projects:

     (a) Service area population;

     (b) Existing residential need at the time of application; and

     (c) Level of financial burden placed on the ratepayers.

     (2) Service area population. Applicants with a service area population of twenty-five thousand or less can request hardship-funding consideration by submitting a financial hardship analysis form along with the funding application. If the service area population is different from the population of the applicant, the applicant must show that the hardship assistance is solely used to benefit the population of the service area.

     (3) Existing residential need. The applicant and the department calculate the water pollution control facilities construction costs that are associated with existing residential need at the time of application.

     (4) Level of financial burden.

     (a) Financial burden for the sewer ratepayer is determined by calculating the residential sewer user fee as a percent of the median household income (MHI). The residential sewer user fee is calculated using the construction cost estimates including:

     (i) Estimated construction cost;

     (ii) Existing annual operation and maintenance costs;

     (iii) Discounted, existing annual operation and maintenance costs as a result of constructing the project;

     (iv) Projected future annual operation and maintenance costs for the total facility;

     (v) The applicant's current and future annual debt service on the project;

     (vi) The revolving fund annual debt service for the funded project;

     (vii) Other grants;

     (viii) The applicant's level of debt for other wastewater facilities not associated with the project;

     (ix) The total number of households existing at the time of application that will be served by the project;

     (x) The nonresidential share of the total annual costs is deducted; and

     (xi) Median household income;

     (b) The sewer user fee as a percentage of MHI is the basis for the department's loan hardship-funding continuum shown in figure 2;

     (c) The most recent available census data determines the median household income. This data is updated yearly based on inflation rates as measured by the federal Bureau of Labor Statistics and published as the Consumer Price Index; and

     (d) If median household income data are not available for a community or if the community disputes the data used by the department, the department may allow an applicant to conduct a scientific survey to determine the median household income.

     (5) Loan terms and interest rates. The department uses the loan hardship-funding continuum to determine the hardship-loan interest rates. Not more than fifty percent of the funding category can be awarded to any one applicant per funding cycle. In addition to a reduced interest rate, the applicant may receive longer loan repayment terms, not to exceed twenty years.

     For example:

Assuming that the average market rate for tax-exempt municipal bonds is five percent, the following would apply.

When an applicant with a service area population of twenty-five thousand or less can demonstrate that its sewer user rates for the proposed project are between three and five percent of the median household income, the applicant may be eligible for a twenty-year repayment term and a one percent interest rate. This interest rate represents twenty percent of the average market rate for tax-exempt municipal bonds (see figure 2).

     (6) Figure 2. Loan Hardship-Funding Continuum

Sewer User Fee divided by MHI	Below 2.0%	2.0% and above, but Below 3.0%	3.0% and above, but below 5.0%	5.0% and above
Hardship Designation	Nonhardship (Low sewer user rates in relation to MHI) (Not funded with grant dollars)	Moderate Hardship	Elevated Hardship	Severe Hardship (Very high sewer user rates in relation to median household income (MHI))
Loan Hardship-Funding Continuum	Loan at 60% of market rate	Loan at 40% of market rate	Loan at 20% of market rate	Loan at 0% interest

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     (2) Final loan blended interest rate. The department may adjust the recipient's interest rates based on the interest rates that the recipient charged to homeowners and small commercial enterprises. To receive the adjusted interest rate, the recipient must issue loans shown in figure 3.

     (3) Figure 3 shows the interest rate schedule for loans targeted to homeowners at three levels of county median household income. For information on how the market rate is determined, see WAC 173-98-400.

     Figure 3.

Homeowner Income is:	20-Year Term	5-Year Term	Hardship Level
Above 80% county MHI	60% of MR	30% of MR	Nonhardship
50 - 80% county MHI	30% of MR	Up to 15% of MR	Moderate
Below 50% county MHI	Up to 15% of MR	0%	Severe

     Figure 4.

     Figure 4 shows the interest rate schedules for loans targeted to small commercial enterprises at three levels of annual gross revenue. For example, in order for a small commercial enterprise to be considered for moderate to severe hardship, the business must provide documentation to substantiate that annual gross revenue is less than one hundred thousand dollars.

Small Commercial Enterprise Annual Gross Revenue is:	20-Year Term	5-Year Term	Hardship Level
Above $100,000	60% of MR	30% of MR	Nonhardship
$50,000 - $100,000	30% of MR	Up to 15% of MR	Moderate
Below $50,000	Up to 15% of MR	0%	Severe

     (4) The recipient agrees to submit a final compilation of the local loans provided to homeowners and small commercial enterprises throughout the duration of the project. The list will include information provided by the RECIPIENT regarding the number and final dollar amounts of loans funded in the following respective homeowner income and small commercial enterprise revenue levels:

     (a) Homeowner income:

     (i) Above 80% of county MHI

     (ii) 50 to 80% of county MHI

     (iii) Below 50% of county MHI

     (b) Small commercial enterprise annual gross revenue:

     (i) Above $100,000

     (ii) $50,000 to $100,000

     (iii) Below $50,000

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     (a) Service area population;

     (b) Presence of a permit; and

     (c) Community's median household income (MHI).

     (2) Service area population, presence of permit, and median household income. Applicants under a permit, with a service area population of twenty-five thousand or less, and whose MHI is sixty percent or less of the average statewide MHI can request hardship-funding consideration. If the service area population is different from the population of the applicant, the applicant must show that the hardship assistance is solely used to benefit the population of the service area.

     (3) If MHI data are not available for a community or if the community disputes the data used by the department, the department may allow an applicant to conduct a scientific survey to determine the MHI.

     (4) Figure 5 describes the interest rate schedule. For information on how the market rate is determined, see WAC 173-98-400.

     Figure 5.

Service area MHI is:	20-Year Term	5-Year Term
Above 60% statewide MHI	Not eligible	Not eligible
60% or below statewide MHI	Up to 30% of MR	Up to 15% of MR

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LOAN TERMS
NEW SECTION
WAC 173-98-400   Loan interest rates.   (1) Interest will accrue on each disbursement as it is paid to the recipient.

     (2) The department bases loan interest rates on the average market interest rate. The average market interest rate is:

     (a) Based on the daily market rate published in the bond buyer's index for tax-exempt municipal bonds; and

     (b) Taken from the period sixty to thirty days before the annual funding application cycle begins.

     (3) See WAC 173-98-300 or 173-98-3010 for hardship interest rates.

     Figure 6: Loan Terms and Interest Rates

Repayment Period	Interest Rate
Up to 5 years:	30% of the average market rate.
More than 5 but no more than 20 years:	60% of the average market rate.

     (4) The director may approve lower interest rates for the annual funding application cycle if a financial analysis of the revolving fund demonstrates that lower interest rates for that year are not detrimental to the perpetuity of the revolving fund.

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     (2) Standard refinance refers to a completed project funded with moneys from a source other than the department. It is limited to water pollution control facilities where project construction began after March 7, 1985.

     (a) Applicants requesting standard refinancing must meet all the requirements contained in the act;

     (b) Standard refinance projects will only be funded if there is limited demand for moneys for new projects;

     (c) All department prerequisites must have been met at the time the project was undertaken;

     (d) If multiple standard refinance applications are received, priority will be given based on impacts to the rate payers in the service area of the project;

     (e) Standard refinance projects are not eligible for hardship financial assistance; and

     (f) Repayment begins six months after a funding agreement becomes effective.

     (3) Interim refinance applies to a project that is in progress using moneys from a source other than the department. Interim refinance retires existing debt and also covers the remaining eligible project costs. Interim refinance projects must meet all applicable requirements of this chapter.

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     (2) Defeasance means setting money aside in a special account that is dedicated to pay all or some of the principal and interest on a debt when it comes due.

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     (1) A final loan repayment schedule that reflects the length of repayment terms and the principal from disbursements and accrued interest;

     (2) The first repayment of principal and interest will be due one year after the initiation of operation date, or one year after the project completion date, whichever occurs first;

     (3) Equal payments will be due every six months;

     (4) If the due date for any payment falls on a Saturday, Sunday, or designated holiday for Washington state agencies, the payment shall be due on the next business day for Washington state agencies;

     (5) Loan balances may be repaid or additional principal payments may be made at any time without penalty; and

     (6) The department may assess a late fee for delinquent payments, according to WAC 173-98-470.

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     (1) General obligation. Repayment of the loan may be secured by a general obligation pledge. The recipient shall pledge to include in its budget an amount sufficient to pay the principal and interest on the loan when due. For so long as the loan is outstanding, the recipient shall ensure adequate funds are available to enable timely loan repayment, which may require the recipient to levy additional annual taxes against the taxable property within its boundaries. The full faith, credit, and resources of the recipient shall be pledged irrevocably for the annual levy and collection of those taxes and the prompt payment of the principal of and interest on the loan.

     (2) Revenue obligation. Repayment of a loan may be secured by an irrevocable pledge of the net revenues of the recipient's utility and, in appropriate cases, utility local improvement district assessments.

     Repayment of a loan shall constitute a lien and charge upon the net revenues of the recipient's utility prior and superior to any other charges whatsoever, except that the lien and charge shall be junior and subordinate to the lien and charge of any senior lien obligations. If applicable, repayment of a loan shall constitute a lien and charge upon utility local improvement district assessments prior and superior to any other charges whatsoever.

     (3) Tribal governmental enterprises. Federally recognized Indian tribes may provide loan security through dedicated revenue from governmental enterprises. The recipient must demonstrate that the security used has a sufficient track record of income to secure the loan. Tribal governmental enterprises may include leases, gaming as provided under approved gaming compacts, forestry, or other tribal government-owned enterprises.

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WATER POLLUTION CONTROL REVOLVING FUND REQUIREMENTS FOR MANAGING LOANS
NEW SECTION
WAC 173-98-500   Funding categories.   (1) The revolving fund is split into two funding categories:

     (a) Water pollution control facilities category: Eighty percent of the revolving fund is used for facilities projects as established under section 212 of the act; and

     (b) Water pollution control activities category: Twenty percent of the revolving fund will be available for the implementation of programs or projects established under the "Washington's water quality management plan to control nonpoint sources of pollution."

     (2) If the demand is limited in either funding category, the department can shift moneys between the funding categories.

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     (2) Where applicable, the recipient must display signs for site-specific projects acknowledging department and EPA funding. The sign must be large enough to be seen from nearby roadways and include a department or EPA logo.

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     (a) Not more than fifty percent of the revolving fund in this category will be available to any one applicant per funding cycle; and

     (b) No more than five million dollars is available for each smaller combined design-construct project (step four). See WAC 173-98-530 for information on smaller combined design-construct projects (step four).

     (2) Water pollution control activities category: Not more than fifty percent of the revolving fund in this category will be available to any one applicant per funding cycle.

     (3) Partially funded projects: If a project is offered partial funding due to the lack of available revolving fund moneys, and the recipient is demonstrating progress on the project, the recipient may apply for the remaining eligible project costs in the subsequent funding cycle.

     (4) Water pollution control facilities construction bid overruns:

     (a) If the low responsive responsible construction bid(s) exceeds the engineer's estimate of construction costs, the department may approve funding increases for up to ten percent of the engineer's original estimate;

     (b) The ceiling amounts that were established in the fiscal year in which the project was offered funding apply; and

     (c) First priority for funding bid overruns will be given to hardship communities based on the severity of financial need.

     (5) Water pollution control facilities construction change orders:

     (a) The department may approve funding for change orders for up to five percent of the eligible portion of the low responsive responsible construction bid(s);

     (b) The ceiling amounts that were established in the fiscal year in which the project was offered funding apply; and

     (c) First priority for funding change orders will be given to hardship communities based on the severity of financial need.

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     (2) For steps one through three, an applicant may only apply for funding for one step of the process at a time. At the time of application, completion of the previous steps must be approved by the department. Funding of one step does not guarantee the funding of subsequent steps.

     (3) The step process includes the following:

     (a) Planning (step one): Step one involves the preparation of a site-specific facilities plan that identifies the cost-effective alternatives for addressing a water pollution control problem. There is no prerequisite for planning. If there is an existing engineering report, it must be upgraded to a facilities plan;

     (b) Design (step two): Step two includes the preparation of plans and specifications for use in construction. These must be based on the preferred cost-effective alternative identified in the facilities plan. A facilities plan must be approved by the department before an application for design can be considered for funding.

     Facilities plans approved by the department more than two years prior to the close of the application period must contain evidence of recent review by the department to ensure the document reflects current conditions; and

     (c) Construction (step three): Step three includes the actual building of facilities based on the approved design. Design must be approved by the department before an application for construction can be considered for funding.

     (4) Combined steps for smaller design-construct projects (step four): In some cases, design and construction may be combined into one loan. Step four applicants must demonstrate that step two (design) can be completed and approved by the department within one year of the effective date of the funding agreement. The total project costs for step four projects must be five million dollars or less.

     (5) Step deviations. During the application phase of the funding cycle, the department may allow an applicant to deviate from the traditional step requirements if:

     (a) The Washington state department of health has declared a public health emergency; and

     (b) The proposed project would remedy this situation.

     No loan agreement will be signed until all previous steps have been completed and approved by the department.

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     (1) Planning involves the identification of problems and evaluation of cost-effective alternatives.

     (2) Implementation is the actual implementation of the project based on the planning document. Where the project includes construction, a design element may be included before the implementation step.

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     (2) A recipient may be required to participate in a postproject survey and interview regarding performance measures.

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DESIGN-BUILD AND DESIGN-BUILD-OPERATE PROJECTS
NEW SECTION
WAC 173-98-600   Design-build and design-build-operate project requirements.   (1) Design-build or design-build-operate projects must be consistent with applicable statutes, such as chapter 39.10 RCW, Alternative public works contracting procedures, chapter 70.150 RCW, Water Quality Joint Development Act, and/or chapter 35.58 RCW, Metropolitan municipal corporations.

     (2) The design and construction portions of a design-build-operate project under chapter 70.150 RCW, Water Quality Joint Development Act, may be eligible for reduced interest rate if the public body can demonstrate financial hardship in accordance with WAC 173-98-300.

     (3) The following conditions apply to design-build and design-build-operate projects:

     (a) The ceiling amounts in WAC 173-98-520;

     (b) If eligible project costs exceed the ceiling amounts in WAC 173-98-520, then public bodies can compete for additional funding in the subsequent funding cycle;

     (c) Interest rates for nonhardship projects are set according to WAC 173-98-400;

     (d) In the case of hardship, a reduced interest rate may be available for the design and construction portion of a design-build-operate project;

     (e) The project scope of work must implement a department-approved facilities plan;

     (f) In addition to the project application information listed in WAC 173-98-200, the project will be evaluated on the applicant's level of administrative and technical expertise;

     (g) Applicants may apply for up to one hundred ten percent of the facilities planning estimate for design and construction. The loan agreement will be written for the final negotiated contract price;

     (h) At the time of application, the following must be provided:

     (i) A legal opinion from an attorney of the public body indicating that the public body has sufficient legal authority to utilize the process;

     (ii) A department-approved facilities plan;

     (iii) A report detailing the projected savings based on a cost and time-to-complete as compared to the traditional design-bid-construct process;

     (i) The department may require that the public body obtain delegation authority consistent with chapter 90.48 RCW, Water pollution control, and assume the responsibility for sequential review and approval of plans, specifications, and change orders. The department will continue to make all eligibility determinations;

     (j) Costs associated with change orders are not eligible for reimbursement;

     (k) Before delegation authority is granted to the applicant and the loan agreement is signed, the following must be approved by the department:

     (i) Primary design elements;

     (ii) Final service agreements and/or contracts;

     (l) Projects funded prior to the effective date of this rule will continue to be managed in accordance with the program guidelines for the year the project was funded;

     (m) Projects must be completed according to the timeline in WAC 173-98-800 and 173-98-810; and

     (n) Projects funded under the alternative contracting service agreement AC/SA pilot rule of 2002 are placed at the top of the "final offer and applicant list" and IUP each year in relative priority to other AC/SA projects. Loan moneys may be disbursed in equal annual payments or by other means that are not detrimental to the perpetuity of the revolving fund.

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COMPLIANCE WITH OTHER LAWS, RULES, AND REQUIREMENTS
NEW SECTION
WAC 173-98-700   General requirements.   (1) Recipients must fully comply with all applicable federal, state, and local laws and regulations relating to topics such as procurement, discrimination, labor, job safety, drug-free environments, and minority and women owned businesses.

     (2) Ongoing management of most aspects of loan projects is subject to the most recent edition of Administrative Requirements for Ecology Grants and Loans.

     (3) Ongoing management of all aspects of loan projects is subject to the associated funding program guidelines.

     (4) The applicant shall secure all necessary permits required by authorities having jurisdiction over the project. Copies must be available to the department upon request.

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     (2) For the purposes of this section, "compliance with the Growth Management Act" means: A county, city, or town that is required to or chooses to plan under RCW 36.70A.040 has adopted a comprehensive plan, including a capital facilities plan element, and development regulations as required by chapter 36.70A RCW.

     (3) For the purposes of this chapter, a public health need related to a loan must be documented by a letter signed by the secretary of the Washington state department of health or his or her designee and addressed to the public official who signed the loan application. "Public health need" means a situation where:

     (a) There is a documented potential for:

     (i) Contaminating a source of drinking water; or

     (ii) Failure of existing wastewater system or systems resulting in contamination being present on the surface of the ground in such quantities and locations as to create a potential for public contact; or

     (iii) Contamination of a commercial or recreational shellfish bed as to create a critical public health risk associated with consumption of the shellfish; or

     (iv) Contamination of surface water so as to create a critical public health risk associated with recreational use; and

     (b) The problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and

     (c) The problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

     (4) For the purposes of this chapter, a substantial environmental degradation related to a loan must be documented by a letter signed by the director and addressed to the public official who signed the loan application. "Substantial environmental degradation" means that:

     (a) There is a situation causing real, documented, critical environmental contamination that:

     (i) Contributes to violations of the state's water quality standards; or

     (ii) Interferes with beneficial uses of the waters of the state;

     (b) The problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and

     (c) The problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

     (5) A county, city, or town that has been offered a loan for a water pollution control facilities project may not receive loan funds while the county, city, or town is not in compliance with the Growth Management Act unless:

     (a) Documentation showing that a public health need has been provided by the Washington state department of health; or documentation showing that a substantial environmental degradation exists has been provided by the department;

     (b) The county, city, or town has provided documentation to the department that actions or measures are being implemented to address the public health need or substantial environmental degradation; and

     (c) The department has determined that the project is designed to address only the public health need or substantial environmental degradation described in the documentation, and does not address unrelated needs including, but not limited to, provisions for additional growth.

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     (2) SERP includes all the provisions of the State Environmental Policy Act (SEPA), chapter 43.21C RCW, and the SEPA rules, chapter 197-11 WAC, and applicable federal requirements.

     (3) All mitigation measures committed to in documents developed in the SERP process, such as the environmental checklist, environmental report, SEPA environmental impact statement (EIS), the finding of no significant impact/environmental assessment, or record of decision/federal EIS will become revolving fund loan agreement conditions. Failure to abide by these conditions will result in withholding of payments and may result in immediate repayment of the loan.

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     (2) A cost-effectiveness analysis must be included in the facilities plan and must include the following:

     (a) A comparison of the total cost, total present worth or annual equivalent costs of alternatives considered for the planning period;

     (b) The no action alternative; and

     (c) A consideration of the monetary or nonmonetary costs/benefits of each alternative, such as the environmental impact, energy impacts, growth impacts, and community priorities.

     (3) Facilities plans proposing design-build or design-build-operate projects must demonstrate that this approach is the cost-effective alternative for procurement.

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TIMELY USE OF REVOLVING FUND LOAN MONEYS
NEW SECTION
WAC 173-98-800   Starting a project.   Costs incurred before a loan agreement is effective are not eligible for reimbursement, unless prior authorization is granted by the department or interim refinancing is approved. For more information on interim refinancing, see WAC 173-98-410.

     (1) Prior authorization to incur eligible costs.

     (a) An applicant may request prior authorization to incur eligible project costs if the following applies:

     (i) The project is identified on the IUP;

     (ii) Costs are incurred between the publication date of the "final offer and applicant" list and when the funding agreement is signed by the water quality program manager or other schedules set in the prior authorization letter; and

     (iii) The written request is made to the water quality program manager;

     (b) The water quality program manager will send the applicant a letter approving or denying the prior authorization; and

     (c) Any project costs incurred prior to the publication date of the "final offer and applicant list" are not eligible for reimbursement. All costs incurred before the agreement is signed by the water quality program manager are at the applicant's own risk.

     (2) Project initiation. Loan moneys must be spent in a timely fashion. The recipient must consistently meet the performance measures agreed to in the loan agreement. These performance measures include, but are not limited to, the following:

     (a) Work on a project must be started within sixteen months of the publication date of the "final offer and applicant list" on which the project was proposed.

     (b) Starting a project means making any measurable step toward achieving the milestones, objectives, and overall goals of the project.

     (c) Loan offers identified on the "final offer and applicant list" will be effective for up to one year from the publication date of the "final offer and applicant list." Local offers that do not result in a signed agreement are automatically terminated, see WAC 173-98-220 Final offer and applicant list.

     (3) Project initiation extension. Certain circumstances may allow a time extension of no more than twelve months for starting a project. For example:

     (a) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (b) There is a need to do work during an environmental window in a specific season of the year; or

     (c) Other reasons as identified by the department on a case-by-case basis.

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     (1) Project completion.

     (a) Work on a project must be completed within five years of the publication date of the "final offer and applicant list" on which the project was proposed. A shorter time period may be specified in the loan agreement; and

     (b) Completing a project means completing all milestones and objectives associated with the goals of the loan agreement.

     (2) Project completion extension.

     (a) After the five-year limit is reached, a time extension of no more than twelve months may be made under certain circumstances, including but not limited to:

     (i) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (ii) There is a need to do work during an environmental window in a specific season of the year; and

     (b) To ensure timely processing, the time extension request must be made prior to the completion or expiration date of the loan agreement.

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ADMINISTRATIVE PROVISIONS
NEW SECTION
WAC 173-98-900   Water pollution control revolving fund (revolving fund) perpetuity.   (1) The act requires that the revolving fund be managed in perpetuity.

     (2) The department will strive to achieve perpetuity, as defined by WAC 173-98-030, by 2016.

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     (2) Accounting irregularities may result in a payment hold until irregularities are resolved. The director may require immediate repayment of misused loan moneys.

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     (1) First, the recipient may seek review of the financial assistance program's initial decision within thirty days of the decision in writing to the water quality program manager. The program manager will consider the appeal information and may choose to discuss the matter by telephone or in person;

     (2) The program manager will issue a written decision within thirty days from the time the appeal is received;

     (3) If the recipient is not satisfied with the program manager's decision, the recipient has thirty days to submit a written request to the deputy director for a review of the decision;

     (4) The deputy director will consider the appeal information, and may choose to discuss the matter by telephone or in person. The deputy director will issue a written decision within thirty days from the time the appeal is received. The deputy director's decision will be the final decision of the department;

     (5) If the recipient is not satisfied with the deputy director's final decision, the recipient may appeal to the Thurston County superior court, pursuant to RCW 34.05.570(4), which pertains to the review of "other agency action"; and

     (6) Unless all parties to such appeal agree that a different time frame is appropriate, the parties shall attempt to bring the matter for a superior court determination within four months of the date in which the administrative record is filed with the court. This time frame is to ensure minimal disruptions to the program.

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     (a) Request certification authority;

     (b) Document that it has the capability and resources;

     (c) Document that it is in the best interest of the state; and

     (d) Demonstrate that the request is consistent with state and federal laws and regulations.

     (2) Concurrences required in the environmental review process cannot be delegated to recipients.

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     The following sections of the Washington Administrative Code are repealed:

WAC 173-98-050	What are the limitations on the use of funds and how are the funds categorized?
WAC 173-98-060	What is the step process for planning facilities and activities projects?
WAC 173-98-070	What other laws, regulations, or requirements must recipients comply with?
WAC 173-98-075	How does the Growth Management Act impact the use of funds?
WAC 173-98-080	Indemnification.
WAC 173-98-090	How are loans managed?
WAC 173-98-120	General provisions.

OTS-9549.2

AMENDATORY SECTION(Amending Order 00-10, filed 12/8/00, effective 1/8/01)

WAC 173-95A-010   ((What is the purpose of this chapter?)) Purpose.   ((The purpose of this chapter is to set forth limitations on the allocation and uses of moneys administered by the department of ecology from a special fund within the state treasury known as the water quality account, as authorized by chapter 70.146 RCW. This fund provides financial assistance, in the form of loans and grants to meet high priority water quality management needs, to public bodies throughout the state of Washington. Funded projects must address water quality problems related to public health and environmental degradation. In order to encourage the timely use of funds provided by the state legislature, priority will be given to projects shown to be ready to proceed.)) (1) The purpose of this chapter is to set forth requirements for the department of ecology's administration of the centennial clean water program, as authorized by chapter 70.146 RCW, Water pollution control facilities financing. This fund provides financial assistance to public bodies for statewide, high-priority water quality projects in the form of grants and loans through appropriation by the Washington state legislature.

     (2) The centennial program may be used for the following purposes:

     (a) To make grants and loans to finance the planning, design, and/or construction of water pollution control facilities; and

     (b) To make grants and loans for nonpoint source pollution control management programs, including planning and implementing elements of the most current version of the "Washington's Water Quality Management Plan to Control Nonpoint Sources of Pollution," (ecology publication #05-10-027).

[Statutory Authority: Chapter 70.146 RCW. 01-01-042 (Order 00-10), § 173-95A-010, filed 12/8/00, effective 1/8/01. Statutory Authority: RCW 70.146.070 and 36.70A.040. 97-24-096 (Order 97-31), § 173-95A-010, filed 12/3/97, effective 1/3/98.]

     (2) The integrated funding process includes a combined funding cycle, program guidelines, funding offer and applicant list, and statewide funding workshops.

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     (56) "Water resource inventory area" or "WRIA" means one of sixty-two watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in chapter 173-500 WAC as it existed on January 1, 1997.)) For the purposes of this chapter:

     (1) Activities see water pollution control activities.

     (2) Applicant means a public body that has applied for funding.

     (3) Best management practices (BMP) means physical, structural, and/or managerial practices approved by the department that prevent or reduce pollutant discharges.

     (4) Cash match means moneys used to match the state share of a grant.

     (5) Ceiling amount means the highest level of financial assistance the department can provide to a recipient for an individual project.

     (6) Centennial means the centennial clean water program.

     (7) Commercial, industrial, and institutional flows mean the portion of the total flows to a facility that originate from commercial establishments, industrial facilities, or institutional sources such as schools, hospitals, and prisons.

     (8) Competitive funding means moneys available for projects through a statewide evaluation process.

     (9) Completion date or expiration date means the date indicated in the funding agreement in which all milestones and objectives associated with the goals of the project are met.

     (10) Concentrated animal feeding operation (CAFO) means:

     (a) An animal livestock feeding operation that discharges animal waste to the waters of Washington state more frequently than the twenty-five-year, twenty-four-hour storm event; or

     (b) An operation that is under a department administrative order, notice of violation, a National Pollution Discharge Elimination System permit; or

     (c) An operation that will be required to have a National Pollution Discharge Elimination System permit coverage in the near future; or

     (d) An operation designated by the Environmental Protection Agency as polluting the waters of Washington state.

     (11) Conservation easement means a recorded legal agreement between a landowner and a public body to allow or restrict certain activities and uses that may take place on his or her property.

     (12) Conservation plan means a document that outlines how a project site will be managed using best management practices to avoid potential negative environmental impacts.

     (13) Construction means to erect, install, expand, or improve water pollution control facilities or activities. Construction includes construction phase engineering and preparation of the operation and maintenance manual.

     (14) Cost-effective alternative means the option selected in an approved facilities plan that meets the requirements of the project, recognizes environmental and other nonmonetary impacts, and offers the lowest cost over the life of the project (i.e., lowest present worth or equivalent annual value).

     (15) Department means the Washington state department of ecology.

     (16) Design means the preparation of the plans and specifications used for construction of water pollution control facilities or activities.

     (17) Director means the director of the Washington state department of ecology or his or her authorized designee.

     (18) Draft offer and applicant list means a catalog of all projects considered and proposed for funding based on an evaluation and the appropriations in the Washington state capital budget.

     (19) Easement means a recorded legal agreement between a public body and a landowner that allows the public body to have access to the landowner's property at any time to inspect, maintain, or repair loan-or-grant-funded activities or facilities.

     (20) Effective date means the date the loan or grant agreement is signed by the department's water quality program manager.

     (21) Eligible cost means the portion of the facilities or activities project that can be funded.

     (22) Enforcement order means an administrative requirement issued by the department under the authority of RCW 90.48.120 that directs a public body to complete a specified course of action within an explicit period to achieve compliance with the provisions of chapter 90.48 RCW.

     (23) Engineering report means a document that includes an evaluation of engineering and other alternatives that meet the requirements in chapter 173-240 WAC, Submission of plans and reports for construction of wastewater facilities.

     (24) Environmental degradation means the reduced capacity of the environment to meet social and ecological objectives and needs.

     (25) Environmental emergency means a problem that a public body and the department agree poses a serious, immediate threat to the environment or to the health or safety of a community and requires immediate corrective action.

     (26) Estimated construction cost means the expected amount for labor, materials, equipment, and other related work necessary to construct the proposed project.

     (27) Existing need means water pollution control facility's capacity reserved for all users, at the time of application, in order to meet the requirements of the water quality based effluent limitations in the associated National Pollution Discharge Elimination System or state waste discharge permit.

     (28) Existing residential need means water pollution control facility's capacity reserved for the residential population, at the time of application, in order to meet the water quality based effluent limitations in the associated National Pollution Discharge Elimination System or state waste discharge permit.

     (29) Extended grant payments means cash disbursements for eligible project costs made with equal annual payments as established in RCW 70.146.075.

     (30) Facilities see water pollution control facility.

     (31) Facilities plan means an engineering report that includes all the elements required by the state environmental review process (SERP), National Environmental Policy Act (NEPA) as appropriate, other federal statutes, and planning requirements under chapter 173-240 WAC, Submission of plans and reports for construction of wastewater facilities.

     (32) Final offer and applicant list means a catalog of all projects considered and proposed for funding and those offered funding.

     (33) Force account means loan or grant project work performed using labor, materials, or equipment of a public body.

     (34) Funding cycle means the events related to the competitive process used to allocate moneys from the clean water state revolving fund, centennial clean water program, and the Clean Water Act section 319 nonpoint source fund for a state fiscal year.

     (35) Grant agreement means a contractual arrangement between a public body and the department.

     (36) Indirect cost means costs that benefit more than one activity of the recipient and not directly assigned to a particular project objective.

     (37) In-kind contributions means the value of noncash contributions provided for a project.

     (38) Interlocal agreement means a written arrangement between a grant recipient and another public body to provide eligible grant match contributions to a project. Interlocal agreements are subject to chapter 39.34 RCW, Interlocal Cooperation Act.

     (39) Interlocal costs means the value of goods or services provided to a project by a public body under the terms of an interlocal agreement. Interlocal contributions satisfy cash matching requirements.

     (40) Infiltration and inflow means water, other than wastewater, that enters a sewer system.

     (41) Infiltration and inflow correction means the cost-effective alternative or alternatives identified in an approved facilities plan or engineering report for eliminating or reducing the infiltration and inflow to an existing sewer system.

     (42) Landowner agreement means a written arrangement between a public body and a landowner that allows the public body to have access to the property to inspect project-related components.

     (43) Loan agreement means a contractual arrangement between a public body and the department that involves a disbursement of moneys that must be repaid.

     (44) Loan default means failure to make a loan repayment to the department within sixty days after the payment was due.

     (45) Match means the recipient share of eligible project costs.

     (46) Nonpoint source water pollution means pollution that enters any waters from widespread water-based or land-use activities. Nonpoint source water pollution includes, but is not limited to atmospheric deposition; surface water runoff from agricultural lands, urban areas, and forest lands; subsurface or underground sources; and discharges from boats or other marine vessels.

     (47) Plans and specifications means the construction contract documents and supporting engineering documents prepared in sufficient detail to allow contractors to bid on and construct water pollution control facilities. "Plans and specifications" and "design" may be used interchangeably.

     (48) Preliminary project priority list means a catalog of all projects considered for funding based on the governor's budget and submitted to the Washington state legislature for its consideration during budget development.

     (49) Project means a water quality improvement effort funded with a grant or loan.

     (50) Project completion or expiration means the date indicated in the funding agreement in which all milestones and objectives associated with the goals are met.

     (51) Public body means a state of Washington county, city or town, conservation district, other political subdivision, municipal corporation, quasi-municipal corporation, those Indian tribes recognized by the federal government, or institutions of higher education when the proposed project is not part of the school's statutory responsibility.

     (52) Public health emergency means a situation declared by the Washington state department of health in which illness or exposure known to cause illness is occurring or is imminent.

     (53) Recipient means a public body that has an effective loan or grant agreement with the department.

     (54) Riparian buffer or zone means a swath of vegetation along a channel bank that provides protection from the erosive forces of water along the channel margins and external nonpoint sources of pollution.

     (55) Scope of work means a detailed description of project tasks, milestones, and measurable objectives.

     (56) Service area population means the number of people served in the area of the project.

     (57) Severe public health hazard means a situation declared by the Washington state department of health in which the potential for illness exists, but illness is not occurring or imminent.

     (58) Sewer means the pipe and related pump stations located on public property or on public rights of way and easements that convey wastewater from buildings.

     (59) Side sewer means a sanitary sewer service extension from the point five feet outside the building foundation to the publicly owned collection sewer.

     (60) State environmental review process (SERP) means the National Environmental Policy Act (NEPA)-like environmental review process adopted to comply with the requirements of the Environmental Protection Agency's Code of Regulations (40 CFR § 35.3140). SERP combines the State Environmental Policy Act (SEPA) review with additional elements to comply with federal requirements.

     (61) Total eligible project cost means the sum of all expenses associated with a water quality project that are eligible for funding.

     (62) Total project cost means the sum of all expenses associated with a water quality project.

     (63) Water pollution means contamination or other alteration of the physical, chemical, or biological properties of any waters of the state, including change in temperature, taste, color, turbidity, or odor; or any discharge of a liquid, gas, solid, radioactive substance, or other substance into any waters of the state that creates a nuisance or renders such waters harmful, detrimental, or injurious to the public, to beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life.

     (64) Water pollution control activities or activities means actions taken by a public body for the following purposes:

     (a) To prevent or mitigate pollution of underground water;

     (b) To control nonpoint sources of water pollution;

     (c) To restore the water quality of freshwater lakes; and

     (d) To maintain or improve water quality through the use of water pollution control facilities or other means.

     (65) Water pollution control facility or facilities means any facilities or systems for the control, collection, storage, treatment, disposal, or recycling of wastewater, including, but not limited to, sanitary sewage, storm water, residential, commercial, industrial, and agricultural wastes. Facilities include all necessary equipment, utilities, structures, real property, and interests in and improvements on real property.

     (66) Water resource inventory area (WRIA) means one of the watersheds in the state of Washington, each composed of the drainage areas of a stream or streams, as established in the Water Resources Management Act of 1971 (chapter 173-500 WAC).

[Statutory Authority: Chapter 70.146 RCW. 01-01-042 (Order 00-10), § 173-95A-020, filed 12/8/00, effective 1/8/01. Statutory Authority: RCW 70.146.070 and 36.70A.040. 97-24-096 (Order 97-31), § 173-95A-020, filed 12/3/97, effective 1/3/98.]

ELIGIBLE PROJECT TYPES
AMENDATORY SECTION(Amending Order 00-10, filed 12/8/00, effective 1/8/01)

WAC 173-95A-100   ((How are grants and loans managed?)) Grant and loan eligible.   (((1) Timely use of funds: Projects funded with loans or grants from the centennial fund must be spent in a timely fashion so that funds are put to work for the water quality of the state as soon as possible. To accomplish this, certain time restrictions are placed on the use of funds as follows:

     (a) Work on a project must be started within sixteen months of the publication date of the final offer list on which the project was proposed.

     (i) Any expenditure of funds which is eligible for reimbursement under the terms of the loan or grant agreement constitutes starting the project.

     (ii) No more than one time extension of no more than twelve months may be made when there are valid reasons for the extension and when the extension is included in the signed funding agreement with the department.

     (iii) Valid reasons for a time extension allowing a start date more than sixteen months after the publication date of the final offer list are limited to:

     (A) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (B) The recipient and the department agree that there is a need to do work during an environmental window in a specific season of the year.

     (iv) If the funding recipient has one of these valid reasons to wait longer than sixteen months to start the project, the reasons why it will take longer and the schedule the recipient will follow must both be stated clearly in a signed loan or grant agreement.

     (b) Work on a project must be completed within five years of the publication date of the final offer list on which the project was proposed or within a shorter time period if the shorter period is identified in the funding agreement for the project. When all work identified in the funding agreement scope of work is finished, the project is deemed to be completed. After the five-year time limit is reached, no further expenditures may be reimbursed unless an extension is made.

     (i) No more than one time extension of no more than twelve months may be made when there are valid reasons for the extension; and

     (A) The extension is requested no less than three months before the funding agreement is due to expire; and

     (B) The department's water quality program manager agrees that the extension is for a valid reason.

     (ii) Valid reasons for a time extension are limited to:

     (A) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (B) The recipient and the department agree that there is a need to do work during an environmental window in a specific season of the year.

     (iii) If the funding recipient has one of these valid reasons to be allowed a time extension, the reasons why it will take longer and the schedule the recipient will follow must both be stated clearly in a signed amendment to the existing loan or grant agreement.

     (c) In-kind goods and services may be used as match for activities grants subject to ceiling amount restrictions covered in WAC 173-95A-030 and subject to the most recent edition of Administrative Requirements for Ecology Grants and Loans.

     (d) In-kind goods and services may be used as match for facilities grants only in the case of projects undertaken under the small town environmental program, or "STEP."

     (2) Prior authorization to incur costs. In cases where a project has been identified on a final offer list, the applicant may make a written request to the water quality program manager, asking to begin incurring costs related to a loan or grant for which there is not yet a signed loan or grant agreement. If the department concurs with this request, the water quality program manager will send the applicant a letter authorizing the costs. The applicant incurs the costs at their own risk. When an agreement is signed, previously incurred costs that are not eligible under the terms of the agreement are the sole responsibility of the applicant.

     (3) Appeals of loan and grant agreement decisions: The only decisions which may be appealed are written decisions by the department made during the effective loan or grant agreement period. Appeals must be filed in writing to the department within forty-five days from the date of the disputed decision. Following the final decision of a dispute, the department and the recipient shall proceed with the project in accordance with the decision rendered. Administrative or legal costs and other expenses incurred as part of an appeal will not be eligible for reimbursement.

     (4) The department, or at the department's discretion another authorized auditor, may audit the loan or grant agreement and records.

     (5) The administration of all loans and grants will be subject to all terms and conditions in a funding agreement signed by the department and by the recipient.

     (6) Ongoing management of most aspects of loan and grant projects is subject to the most recent edition of Administrative Requirements for Ecology Grants and Loans, copies of which will be provided to all recipients.)) Certain projects or project elements, including but not limited to the following may be eligible for centennial loan or grant assistance:

     (1) Aquatic plant control when the water quality degradation is due to the presence of aquatic plants, and the source(s) of pollution can be addressed sufficiently to ensure that the pollution is eliminated;

     (2) BMP implementation on private property:

     (a) Best management practices that consist of new, innovative or alternative technology not yet demonstrated in the department's region in which it is proposed;

     (b) Best management practices in the riparian buffer or zone, such as revegetation or fence construction and where a conservation easement or landowner agreement is granted by the landowner; and

     (c) Other water quality best management practices that are evaluated and approved by the department on a case-by-case basis, and where a conservation easement or landowner agreement is granted by the landowner;

     (3) BMP implementation on public property;

     (4) Computer equipment and software specific to the funded project and preapproved by the department;

     (5) Diagnostic studies to assess current water quality;

     (6) Education and outreach efforts for the public;

     (7) Environmental checklists, assessments, and impact statements necessary to satisfy requirements for the SEPA, the NEPA, and the SERP;

     (8) Equipment and tools as identified in a grant or loan agreement;

     (9) Ground water protection activities such as wellhead protection and critical aquifer recharge area protection;

     (10) Hardship assistance for wastewater treatment facilities construction, storm water management, and on-site septic system repair and replacement, and construction elements of a design-build-operate project;

     (11) Implementation of eligible projects identified in water quality plans;

     (12) Indirect costs as defined in the most recently updated edition of Administrative Requirements for Ecology Grants and Loans (publication #91-18);

     (13) Lake implementation and planning activities on lakes with public access;

     (14) Landscaping for erosion control directly related to a project, or site-specific landscaping in order to mitigate site conditions and comply with requirements in the State Environmental Policy Act or the National Environmental Policy Act;

     (15) Light refreshments for meetings when specified in the loan or grant agreement;

     (16) Monitoring BMP effectiveness;

     (17) Monitoring equipment used for water quality assessment;

     (18) Monitoring water quality;

     (19) On-site septic systems:

     (a) Development and administration of a local loan fund for on-site septic system repair and replacement for residential and small commercial systems; and

     (b) On-site wastewater system surveys;

     (20) Model ordinances development and dissemination of model ordinances to prevent or reduce pollution from nonpoint sources;

     (21) Planning comprehensive basin, watershed, and area-wide water quality development;

     (22) Riparian and wetlands habitat restoration and enhancement, including revegetation;

     (23) Sales tax;

     (24) Stream restoration that meets recognized water quality standards;

     (25) Storm water certain nonpermit-related planning activities, such as education and outreach, establishing a storm water utility, identifying and mapping of pollution sources, and department-approved erosion control;

     (26) Total maximum daily load study development and implementation;

     (27) Training to develop specific skills that are necessary to directly satisfy the scope of work. Training, conference registration, or annual meeting fees must be preapproved by the department;

     (28) Wastewater or storm water utility development;

     (29) Wastewater or storm water utility rate or development impact fee studies;

     (30) Water quality education and stewardship programs; and

     (31) Wellhead protection.

[Statutory Authority: Chapter 70.146 RCW. 01-01-042 (Order 00-10), § 173-95A-100, filed 12/8/00, effective 1/8/01.]

     (2) For all projects, the recipient must acknowledge department financial assistance in all reports, technical documents, publications, brochures, and other materials produced using funding from the loan or grant. All site-specific projects must have a sign of sufficient size to be seen from nearby roadways, acknowledging department financial assistance, and left in place throughout the life of the project. Department logos must be on all signs and documents. Logos will be provided as needed.)) Certain projects or project elements, including but not limited to the following may be eligible for centennial loan assistance:

     (1) CAFOs, for BMP implementation;

     (2) Facilities for wastewater and storm water:

     (a) Planning:

     (i) Comprehensive sewer planning, including wastewater elements of capital facilities planning under the Growth Management Act;

     (ii) Facilities planning for water pollution control facilities; and

     (iii) Storm water planning for permitted facilities;

     (b) Design preparation of plans and specifications for water pollution control facilities;

     (c) Construction of:

     (i) Combined sewer overflow abatement;

     (ii) Side sewers or individual pump stations or other appurtenances on private residential property;

     (iii) Sewers and side sewers on public property for infiltration and inflow correction projects, and to replace existing water pollution control facilities;

     (iv) Facilities for the control, storage, treatment, conveyance, disposal, or recycling of storm water; and

     (v) Water pollution control facility construction with reserve capacities to meet up to one hundred ten percent of existing residential needs;

     (d) Value engineering for water pollution control facilities;

     (e) Design or construction costs associated with design-build or design-build-operate contracts;

     (3) Land acquisition:

     (a) As an integral part of the treatment process (e.g., land application);

     (b) For prevention of water pollution;

     (c) For siting of water pollution control facilities, sewer rights of way, easements, and associated costs; or

     (d) for wetland habitat preservation;

     (4) Legal expenses will be determined on a case-by-case basis, such as development of local ordinances, use of a bond counsel, review of technical documents;

     (5) On-site septic systems:

     (a) Local loan fund program development and administration;

     (b) New sewer systems to eliminate failing or failed on-site septic systems;

     (6) Spare parts initial set of spare parts for equipment that is critical for a facility to operate in compliance with discharge permit requirements; and

     (7) Transferring ownership of a small wastewater system to a public body.

[Statutory Authority: Chapter 70.146 RCW. 01-01-042 (Order 00-10), § 173-95A-110, filed 12/8/00, effective 1/8/01.]

     (1) Abandonment or demolition of existing structures;

     (2) Acts of nature that alter the natural environment, thereby causing water quality problems;

     (3) Commercial, institutional or industrial wastewater pretreatment;

     (4) Compensation or damages for any claim or injury of any kind arising out of the project, including any personal injury, damage to any kind of real or personal property, or any kind of contractual damages, whether direct, indirect, or consequential;

     (5) Cost-plus-a-percentage-of-cost contracts (also known as multiplier contracts), time and materials contracts, and percent-of-construction contracts in facilities projects;

     (6) Facilities intended solely to control, transport, treat, dispose, or otherwise manage commercial, institutional, or industrial wastewater;

     (7) Fines and penalties due to violations of or failure to comply with federal, state, or local laws;

     (8) Flood control, projects or project elements intended solely for flood control;

     (9) Funding application preparation for loans or grants;

     (10) Interest on bonds, interim financing, and associated costs to finance projects;

     (11) Landscaping for aesthetic reasons;

     (12) Legal expenses associated with claims and litigation;

     (13) Lobbying or expenses associated with lobbying;

     (14) Monitoring equipment for sampling and analysis of commercial, institutional, or industrial discharges;

     (15) Office furniture not included in the recipient's indirect rate;

     (16) Operating expenses of local government, such as the salaries and expenses of a mayor, city council member, city attorney, etc.;

     (17) Operation and maintenance costs;

     (18) Overtime differential paid to employees of a public body to complete administrative or force account work;

     (19) Permit fees;

     (20) Professional dues;

     (21) Reclamation of abandoned mines;

     (22) Refinance of existing debt;

     (23) Rework costs or previously funded objectives;

     (24) Solid or hazardous waste;

     (25) Vehicle purchase except for vehicles intended for the transportation of liquid or dewatered sludge or septage; and

     (26) Water quantity or other water resource projects that solely address water quantity issues.

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LOAN INTEREST RATES
NEW SECTION
WAC 173-95A-200   Centennial clean water program loan interest rates.   The department bases loan recipient interest rates on the average market interest rate. The average market interest rate is based on the daily market rate published in the bond buyer's index for tax-exempt municipal bonds for the period from sixty to thirty days before the annual funding application cycle begins. See WAC 173-95A-400 for hardship interest rates.

     Loan terms and interest rates are as follows:

Repayment Period	Interest Rate
Up to five years:	Thirty percent of the average market rate.
More than five but no more than twenty years:	Sixty percent of the average market rate.

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HOW TO APPLY FOR FUNDING
NEW SECTION
WAC 173-95A-300   Application for funding.   (1) To apply for funding the applicant must submit a completed application to the department. The department will provide the application on the agency web site.

     (2) The applicant may be asked to provide the following project information:

     (a) Basic information such as names of contacts, addresses, and other tracking information;

     (b) Project summary;

     (c) Project goals, objectives, and milestones;

     (d) Overall water quality benefits;

     (e) Public health benefits;

     (f) Sources of pollution addressed;

     (g) How the project will address state and federal mandates, elements in "Washington's water quality plan to control nonpoint sources of pollution," or other such plans;

     (h) Performance measures and postproject assessment monitoring;

     (i) Readiness to proceed, likelihood of success, and measures of success specific to the project;

     (j) Local initiatives, commitments, or priorities related to the project; or

     (k) Other information requested by the department.

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     (2) Ecology will provide the following services:

     (a) Make available the application and applicable guidelines before the associated funding cycle begins;

     (b) Conduct at least one application workshop in each of ecology's four regions;

     (c) Conduct preapplication workshops to discuss regional level priorities if applicable;

     (d) After the application deadline, complete an initial review of project proposals for funding eligibility;

     (e) Request other agencies to provide evaluation assistance as needed;

     (f) Rate and rank the applications using a consistent scoring system;

     (g) Prepare a combined preliminary project priority list, after evaluation and scoring of all applications;

     (h) Submit preliminary project priority list to the state legislature for budget consideration;

     (i) Develop a combined draft offer and applicant list;

     (j) Facilitate a public review and comment period for the combined draft offer and applicant list;

     (k) Sponsor at least one public meeting to explain the combined draft offer and applicant list;

     (l) Develop a combined "final offer and applicant list." Public comments collected during draft public review period will be incorporated and result in a responsiveness summary;

     (m) Issue funding decision letters to all applicants; and

     (n) Negotiate, develop, and finalize loan or grant agreements.

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FINANCIAL HARDSHIP ASSISTANCE
NEW SECTION
WAC 173-95A-400   Wastewater treatment facilities construction.   (1) There are three primary factors considered in determining hardship funding for the construction portion of a wastewater treatment facilities projects:

     (a) Service area population;

     (b) Existing residential need at the time of application; and

     (c) Level of financial burden placed on the ratepayers.

     (2) Service area population. Applicants serving an area of twenty-five thousand or less can request hardship-funding consideration by submitting a financial hardship analysis form, provided by the department, along with the grant and loan funding application. If the service area population is different from the population of the applicant, the applicant must show that the hardship assistance is solely used to benefit the population of the service area.

     (3) Existing residential need. Water pollution control facilities construction costs that are associated with existing residential need plus ten percent at the time of application may be eligible for funding. Additional reserve capacity for growth is not eligible for grant funding.

     For example:

If an applicant applies for ten million dollars to finance facilities construction costs, where six million dollars is for existing residential need and the remaining four million dollars is for reserve capacity for growth, the applicant may be eligible for six million six hundred thousand dollars in grant funding.

Residential need:	$6,000,000
Reserve capacity for growth
(10% of $6M):	$600,000
Grant Eligible Amount	$6,600,000

     (4) Level of financial burden.

     (a) Financial burden for the sewer ratepayer is determined by calculating the residential sewer user fee as a percent of the median household income (MHI). The residential sewer user fee is calculated using:

     (i) Estimated construction cost;

     (ii) Projected future operation and maintenance costs for the total facility;

     (iii) The applicant's current and future debt service on the project;

     (iv) Other grants;

     (v) Existing annual operation, maintenance, and equipment replacement costs;

     (vi) The total number of households existing at the time of application that will be served by the project; and

     (vii) The nonresidential share of the total annual costs;

     (b) The sewer user fee as a percentage of the MHI is the basis for the department's grant and loan hardship-funding continuum (shown below in figure 2 and figure 3);

     (c) The most recent available census data determines the median household income. This data is updated yearly based on inflation rates as measured by the Federal Bureau of Labor Statistics and published as the Consumer Price Index; and

     (d) If median household income data are not available for a community or if the community disputes the data used by the department, the department may allow an applicant to conduct a scientific survey to determine the median household income.

     (5) Hardship grant ceiling amounts. The department uses the grant hardship-funding continuum, shown in figure 2 below, to determine the percent of grant awarded. There is a funding ceiling of five million dollars per project.

     For example:

When a grant applicant with a service area population of twenty-five thousand or less can demonstrate that its sewer user rates for the proposed project are between three and five percent of the median household income, the applicant may receive a grant of seventy-five percent of eligible project costs, not to exceed five million dollars (see figure 2 below).

     (6) If a project in the hardship category receives partial funding due to department funding constraints, the department may offer the remaining funding, up to five million dollars, in the next funding cycle, and on a case-by-case basis. The department may require further hardship analysis before offering the remaining moneys.

     (7) Loan terms and interest rates. The department uses the loan hardship-funding continuum, shown in figure 2 below, to determine the hardship-loan interest rates. There is a funding ceiling of five million dollars. In addition to a reduced interest rate, the applicant may receive longer loan repayment terms, not to exceed twenty years.

     For example:

Assuming that the average market rate for tax-exempt municipal bonds is five percent, the following would apply.

When a loan applicant with a service area population of twenty-five thousand or less can demonstrate that its sewer user rates for the proposed project are between three and five percent of the median household income, the applicant may be eligible for a twenty-year repayment term and a one percent interest rate. This interest rate represents twenty percent of the average market rate for tax-exempt municipal bonds (see figure 3 below).

     (8) Design-build-operate (construction portion).

     (a) Design-build or design-build-operate projects must be consistent with applicable statutes, such as chapter 39.10 RCW, Alternative public works contracting procedures, chapter 70.150 RCW, Water Quality Joint Development Act, and/or chapter 35.58 RCW, Metropolitan municipal corporations;

     (b) The construction portion of a design-build-operate project under chapter 70.150 RCW, Water Quality Joint Development Act, may be eligible for a grant if the public body can demonstrate financial hardship in accordance with WAC 173-95A-400. Hardship-grant ceiling amounts found in WAC 173-95A-520 apply;

     (c) Design-build-operate projects must comply with chapter 35.58 RCW, Metropolitan municipal corporations;

     (d) The project scope of work must implement a department-approved facilities plan;

     (e) In addition to the project application information found in WAC 173-95A-300, the project will be evaluated on the applicant's level of administrative and technical expertise;

     (f) At the time of application, the following must be provided:

     (i) A legal opinion from an attorney of the public body indicating that the public body has sufficient legal authority to utilize the process;

     (ii) A department-approved facilities plan;

     (iii) A report detailing the projected savings based on a cost and time-to-complete as compared to the traditional design-bid-construct process;

     (g) The department may require that the public body obtain delegation authority consistent with chapter 90.48 RCW, Water pollution control, and assume the responsibility for sequential review and approval of plans, specifications, and change orders. The department will continue to make all eligibility determinations;

     (h) Costs associated with change orders are not eligible for reimbursement;

     (i) Projects must be completed according to the timeline in WAC 173-95A-700 and 173-95A-710; and

     (j) Before the loan agreement is signed, the following must be approved by the department:

     (i) Primary design elements;

     (ii) Final service agreements.

     (9) Extended grant payments. In some cases, the legislature may appropriate extended grant payments per RCW 70.146.075.

     (10) Figure 2: Grant Hardship-Funding Continuum

Sewer User Fee divided by MHI	Below 2.0%	2.0% and above, but Below 3.0%	3.0% and above, but below 5.0%	5.0% and above
Hardship Designation	Nonhardship (Low sewer user rates in relation to MHI) (Not funded with grant dollars)	Moderate Hardship	Elevated Hardship	Severe Hardship (Very high sewer user rates in relation to median household income (MHI))
Grant Hardship-Funding Continuum	0% Grant	50% Grant (up to five million dollars)	75% Grant (up to five million dollars)	100% Grant (up to five million dollars)

     (11) Figure 3: Loan Hardship-Funding Continuum

Sewer User Fee divided by MHI	Below 2.0%	2.0% and above, but Below 3.0%	3.0% and above, but below 5.0%	5.0% and above
Hardship Designation	Nonhardship (Low sewer user rates in relation to MHI) (Not funded with grant dollars)	Moderate Hardship	Elevated Hardship	Severe Hardship (Very high sewer user rates in relation to median household income (MHI))
Loan Hardship-Funding Continuum	Loan at 60% of market rate	Loan at 40% of market rate	Loan at 20% of market rate	Loan at 0% interest

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     (2) There are three primary factors in determining financial hardship for storm water projects:

     (a) Service area population;

     (b) Presence of a permit; and

     (c) Community's median household income (MHI).

     (3) Service area population, presence of permit, and median household income. Applicants under a permit, whose service area population is less than twenty-five thousand, and whose median household income is sixty percent or less of the average statewide MHI, can request hardship-funding consideration.

     (4) In rare cases where financial hardship cannot be determined using population and percent of median household income, the department will make financial hardship determinations on a case-by-case basis.

     (a) The most recent available census data determines the statewide average median household income; and

     (b) This data is updated yearly based on inflation rates as measured by the Federal Bureau of Labor Statistics and published as the Consumer Price Index.

     (5) Matching requirements, percent of grant, and grant ceiling amounts. Storm water-hardship grants are fifty percent grants with a fifty percent cash-matching requirement.

     The maximum amount available for a storm water-hardship grant is $500,000.

     For example:

When a grant applicant whose service area population is twenty-five thousand or less can demonstrate that its MHI is sixty percent or less of the average statewide MHI, the applicant may be eligible for a fifty percent grant, not to exceed five hundred thousand dollars.

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REQUIREMENTS FOR MANAGING GRANTS AND LOANS
NEW SECTION
WAC 173-95A-500   Funding allocation.   There are two project categories in which the competitive funding is allocated: Activities and facilities.

     (1) The scores derived from the application rating and ranking process will determine the allocation of the competitive funding;

     (2) No more than two-thirds of the fund can go to either category;

     (3) If the demand for funding is low in either category, then moneys may be shifted amongst categories; and

     (4) The department will adjust the funding allocation based on the following:

     (a) To provide match for other funding sources, such as the Clean Water Act section 319 nonpoint source fund or other funding programs; or

     (b) To comply with funding restrictions in legislative appropriations.

     For example:

If fifty percent of the competitive centennial program funding is comprised of state building construction account moneys, then fifty percent of the centennial program funding must be allocated to projects approved for that funding source.

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     (2) Site-specific projects must display a sign acknowledging department funding. The sign must be large enough to be seen from nearby roadways, and include a department logo.

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     (a) Five hundred thousand dollars if the match for the grant is in the form of cash and/or interlocal costs; or

     (b) Two hundred fifty thousand dollars if any part of the match is in the form of in-kind goods and services; and

     (c) Five hundred thousand dollars for activities project loans.

     (2) Facilities projects. Loans are subject to ceiling amounts of five million dollars.

     (3) Hardship projects. Grants for facilities construction projects are subject to ceiling amounts of five million dollars.

     (4) Partially funded projects. If a project is offered partial funding due to the lack of available centennial moneys, and the recipient is demonstrating progress on the project, the recipient may apply for the remaining eligible project costs in the subsequent funding cycle.

     (5) Water pollution control facilities construction bid overruns.

     (a) If the low responsive responsible construction bid(s) exceeds the engineer's estimate of construction costs, the department may approve funding increases for up to ten percent of the engineer's original estimate;

     (b) The ceiling amounts in the year the project was offered funding and as established in WAC 173-95A-520 apply; and

     (c) First priority for availability of moneys will be given to hardship communities based on the severity of financial need. For more information, see WAC 173-95A-400.

     (6) Water pollution control facilities construction change orders:

     (a) The department may approve funding for change orders for up to five percent of the eligible portion of the low responsive responsible construction bid(s);

     (b) The ceiling amounts in the year the project was offered funding and as established in WAC 173-95A-520 apply; and

     (c) First priority for availability of moneys will be given to hardship communities based on the severity of financial need. For more information on hardship, see WAC 173-95A-400.

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     (2) No match is required for loans under the centennial program.

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     (2) The step process includes the following:

     (a) Planning (step one): Step one involves the preparation of a site-specific facilities plan that identifies the cost-effective alternatives for addressing a water pollution control problem. There is no prerequisite for planning. If there is an existing engineering report, it must be upgraded to a facilities plan;

     (b) Design (step two): Step two includes the preparation of plans and specifications for use in construction. These must be based on the preferred cost-effective alternative identified in the facilities plan. Facilities plans must be approved by the department before an application for design can be considered for funding. Facilities plans approved by the department more than two years prior to the close of the application period must contain evidence of recent review by the department to ensure the document reflects current conditions; and

     (c) Construction (step three): Step three includes the actual building of facilities based on the approved design. Design must be approved by the department before an application for construction can be considered for funding.

     (3) Combined steps for smaller design-bid-construct projects (step four): In some cases, design and construction may be combined into one loan. Step four applicants must demonstrate that step two (design) can be completed and approved by the department within one year of the effective date of the funding agreement. The total project costs for step four projects must be five million dollars or less.

     (4) Step deviations. During the application phase of the funding cycle, the department may allow an applicant to deviate from the traditional step requirements if:

     (a) The Washington state department of health has declared a public health emergency; and

     (b) The proposed project would remedy this situation.

     No loan agreement will be signed until all previous steps have been completed and approved by the department.

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     (2) Capacity to serve local public primary and secondary schools may be grant eligible if the applicant can demonstrate financial hardship according to WAC 173-95A-400.

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     (1) Planning involves the identification of problems and evaluation of cost-effective alternatives.

     (2) Implementation is the actual implementation of the project based on the planning document. Where the project includes construction, a design element may be included before the implementation step.

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     (2) A recipient may be required to participate in a postproject survey and interview regarding performance measures.

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COMPLIANCE WITH OTHER LAWS, RULES, AND REQUIREMENTS
NEW SECTION
WAC 173-95A-600   General requirements.   (1) Recipients must fully comply with all applicable federal, state, and local laws and regulations relating to topics such as procurement, discrimination, labor, job safety, drug-free environments, and minority and women owned businesses.

     (2) Ongoing management of most aspects of loan projects is subject to the most recent edition of Administrative Requirements for Ecology Grants and Loans.

     (3) Ongoing management of all aspects of loan projects is subject to the associated funding program guidelines.

     (4) The applicant shall secure all necessary permits required by authorities having jurisdiction over the project. Copies must be available to the department upon request.

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     (2) For the purposes of this section, "compliance with the Growth Management Act" means that:

     A county, city, or town that is required to or chooses to plan under RCW 36.70A.040 has adopted a comprehensive plan, including a capital facilities plan element, and development regulations as required by chapter 36.70A RCW.

     (3) For the purposes of this chapter, a public health need related to a loan or grant must be documented by a letter signed by the secretary of the Washington state department of health or his or her designee and addressed to the public official who signed the loan or grant application. "Public health need" means a situation where:

     (a) There is a documented potential for:

     (i) Contaminating a source of drinking water; or

     (ii) Failure of existing wastewater system or systems resulting in contamination being present on the surface of the ground in such quantities and locations as to create a potential for public contact; or

     (iii) Contamination of a commercial or recreational shellfish bed as to create a critical public health risk associated with consumption of the shellfish; or

     (iv) Contamination of surface water so as to create a critical public health risk associated with recreational use; and

     (b) The problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and

     (c) The problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

     (4) For the purposes of this chapter, a substantial environmental degradation related to a loan or grant must be documented by a letter signed by the director and addressed to the public official who signed the loan or grant application. "Substantial environmental degradation" means that:

     (a) There is a situation causing real, documented, critical environmental contamination that:

     (i) Contributes to violations of the state's water quality standards; or

     (ii) Interferes with beneficial uses of the waters of the state; and

     (b) The problem generally involves a serviceable area including, but not limited to, a subdivision, town, city, or county, or an area serviced by on-site sewage disposal systems; and

     (c) The problem cannot be corrected through more efficient operation and maintenance of an existing wastewater disposal system or systems.

     (5) A county, city, or town that has been offered a loan or grant for a water pollution control facilities project may not receive loan or grant funding while the county, city, or town is not in compliance with the Growth Management Act unless:

     (a) Documentation showing that a public health need has been provided by the Washington state department of health; or documentation showing that a substantial environmental degradation exists has been provided by the department; and

     (b) The county, city, or town has provided documentation to the department that actions or measures are being implemented to address the public health need or substantial environmental degradation; and

     (c) The department has determined that the project is designed to address only the public health need or substantial environmental degradation described in the documentation, and does not address unrelated needs including, but not limited to, provisions for additional growth.

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TIMELY USE OF CENTENNIAL PROGRAM MONEYS
NEW SECTION
WAC 173-95A-700   Starting a project.   Costs incurred before a grant or loan agreement is effective are not eligible for reimbursement, unless prior authorization is granted by the department.

     (1) Prior authorization to incur costs.

     (a) An applicant may request prior authorization to incur eligible project costs if the following applies:

     (i) The project is identified on the "final offer and applicant list";

     (ii) Costs are incurred between the publication date of the "final offer and applicant list" and when the funding agreement is signed by the water quality program manager or other schedules set in the prior authorization letter; and

     (iii) The written request is made to the water quality program manager;

     (b) The water quality program manager will send the applicant a letter approving or denying the prior authorization; and

     (c) Any project costs incurred prior to the publication date of the "final offer and applicant list" are not eligible for reimbursement. All costs incurred before the agreement is signed by the water quality program manager are at the applicant's own risk.

     (2) Project initiation. Grant or loan moneys must be spent in a timely fashion. The recipient must consistently meet the performance measures agreed to in the grant or loan agreement. These performance measures include, but are not limited to, the following:

     (a) Work on a project must be started within sixteen months of the publication date of the "final offer and applicant list" on which the project was proposed.

     (b) Starting a project means making any measurable steps toward achieving the milestones, objectives, and overall goals of the project.

     (c) Loan and grant offers identified on the "final offer and applicant list" will be effective for up to one year from the publication date of the "final offer and applicant list." Loan and grant offers that do not result in a signed agreement are automatically terminated, see WAC 173-95A-320 Final offer and applicant list.

     (3) Project initiation extension. Certain circumstances may allow a time extension of no more than twelve months for starting a project. For example:

     (a) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (b) There is a need to do work during an environmental window in a specific season of the year.

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     (1) Project completion.

     (a) Work on a project must be completed within five years of the publication date of the "final offer and applicant list" on which the project was proposed. A shorter time period may be specified in the grant or loan agreement; and

     (b) Completing a project means fulfilling all milestones and objectives associated with the goals of the grant or loan agreement.

     (2) Project completion extension.

     (a) After the five-year limit is reached, a time extension of no more than twelve months may be made under certain circumstances, including but not limited to:

     (i) Schedules included in water quality permits, consent decrees, or enforcement orders; or

     (ii) There is a need to do work during an environmental window in a specific season of the year; and

     (b) To ensure timely processing, the time extension request must be made prior to the completion or expiration date of the loan or grant agreement.

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GENERAL ADMINISTRATIVE PROVISIONS
NEW SECTION
WAC 173-95A-800   Accounting requirements for grant and loan recipients.   (1) Recipients must maintain accounting records in accordance with RCW 43.09.200, Local government accounting -- Uniform system of accounting. For example, charges must be properly supported, related to eligible costs, and documented by appropriate records. These records must be maintained separately.

     (2) Accounting irregularities may result in an immediate payment hold. The director may require immediate repayment of misused loan or grant moneys.

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     (1) First, the recipient may seek review of the financial assistance program's initial decision within thirty days of the decision by a written appeal to the water quality program manager. The program manager will consider the appeal information and may choose to discuss the matter by telephone or in person;

     (2) The program manager will issue a written decision within thirty days from the time the appeal is received;

     (3) If the recipient is not satisfied with the program manager's decision, the recipient may request review of the decision within thirty days to the deputy director;

     (4) The deputy director will consider the appeal information, and may chose to discuss the matter by telephone or in person. The deputy director will issue a written decision within thirty days from the time the appeal is received, and that decision will be the final decision of the department;

     (5) If the recipient is not satisfied with the deputy director's final decision, the recipient may appeal to the Thurston County superior court, pursuant to RCW 34.05.570(4), which pertains to the review of "other agency action"; and

     (6) Unless all parties to such appeal agree that a different time frame is appropriate, the parties shall attempt to bring the matter for a superior court determination within four months of the date in which the administrative record is filed with the court. This time frame is to ensure minimal disruptions to the program.

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     The following sections of the Washington Administrative Code are repealed:

WAC 173-95A-030	How and under what conditions, can money from the centennial fund be used?
WAC 173-95A-040	Where can I obtain details about the application and review process for centennial funds?
WAC 173-95A-050	How can a local area have a role in determining funding priorities?
WAC 173-95A-060	What are the limitations on the use of funds?
WAC 173-95A-070	How does the Growth Management Act impact the use of funds?
WAC 173-95A-080	What is the "step process" for planning facilities and activities projects?
WAC 173-95A-090	What other laws, regulations or requirements must recipients comply with?

© Washington State Code Reviser's Office