WSR 16-04-117 PROPOSED RULES RECREATION AND CONSERVATION OFFICE (Salmon Recovery Funding Board) [Filed February 2, 2016, 1:41 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-04-129.
Title of Rule and Other Identifying Information: Amendments to Title 420 WAC, Salmon recovery funding board.
Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98501, on March 16, 2016, at 1:30 p.m.
Date of Intended Adoption: March 16, 2016.
Submit Written Comments to: Leslie Connelly, 1111 Washington Street S.E., P.O. Box 40917, Olympia, WA 98504-0917, e-mail leslie.connelly@rco.wa.gov, fax (360) 902-3027, by March 11, 2016.
Assistance for Persons with Disabilities: Contact Leslie Frank by March 16, 2016, TTY (360) 902-1996 or (360) 902-0220.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to: (1) Update definitions and add new definitions, (2) modify grant program requirements including applications, project agreements and long-term obligations, and (3) revise the public records procedures. The amendments also include nonsubstantive changes to reorganize chapters and update references throughout. The anticipated effect will clarify grant program requirements and align the agency's public records procedures.
Reasons Supporting Proposal: The reasons for this proposal are to update grant program requirements to reflect current practices and to clarify the salmon recovery funding board's statutory obligations administering salmon habitat projects and salmon recovery activities. The proposal will also provide a consistent process for the public when making a public records request.
Statute Being Implemented: Chapter 77.85 RCW, Salmon Recovery Act.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Recreation and conservation office, governmental.
Name of Agency Personnel Responsible for Drafting: Leslie Connelly, 1111 Washington Street S.E., Olympia, WA 98501, (360) 902-3080; Implementation and Enforcement: Kaleen Cottingham, 1111 Washington Street S.E., Olympia, WA 98501, (360) 902-3000.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule making does not meet the definition of "minor cost" in RCW 19.85.020(2) nor would it affect "small businesses" as defined in RCW 79.85.020(3).
A cost-benefit analysis is not required under RCW 34.05.328. The recreation and conservation office is not listed as an agency required to complete a cost-benefit analysis under RCW 34.05.328 (5)(a)(i).
February 2, 2016
Leslie Connelly
Rules Coordinator
Natural Resource Policy Specialist
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-010 Definitions.
For purposes of Title 420 WAC, the definitions in RCW 77.85.010 apply. In addition, unless the context clearly indicates otherwise, the following definitions also apply:
"Acquisition project" means ((the gaining of rights of public ownership by)) a project that purchases((, negotiation, or other means,)) or receives a donation of fee or less than fee interests in real property((, and related interests such as water or mineral claims and use rights)). These interests include, but are not limited to, conservation easements, access or trail easements, covenants, water rights, leases, and mineral rights.
"Agreement" or "project agreement" means the accord accepted by the office and the sponsor for the project and includes any attachments, addendums, and amendments, and any intergovernmental agreements or other documents that are incorporated into the project agreement subject to any limitations on their effect.
"Applicant" means any ((agency, person or organization)) party that meets qualifying standards as described in RCW 77.85.010(6), including deadlines, for submission of an application soliciting a grant of funds from the board. ((Generally, eligible applicants for board funds include a state, local, tribal or special purpose government, a nonprofit organization, a combination of such governments, or a landowner for projects on its land.))
"Application" means the ((form(s) developed and implemented for use by applicants in soliciting project funds administered by the board)) documents and other materials that an applicant submits to the office to support the applicant's request for grant funds.
"Board" means the salmon recovery funding board ((created by chapter 13, Laws of 1999 1st sp. sess. (2E2SSB 5595), now codified)) as described in RCW 77.85.110.
"Capacity funding" is a grant to lead entities and regional organizations as described in RCW 77.85.130(4) to assist in carrying out functions to implement chapter 77.85 RCW.
"Chair" means the chair of the board described in RCW 77.85.110.
(("Development" means the construction or alteration of facilities, the placement or removal of materials, or other physical activity to restore or enhance salmon habitat resources.)) "Citizens committee" means a committee established by a lead entity that consists of representative interests of counties, cities, conservation districts, tribes, environmental groups, business interests, landowners, citizens, volunteer groups, regional fish enhancement groups, and other habitat interests as described in RCW 77.85.050.
"Director" means the director of the office or that person's designee, as described in RCW 79A.25.150((, responsible for implementation of board activities under chapter 77.85 RCW.
"Enhancement project" or "hatchery and harvest enhancement project" means a project that supports hatchery reform to improve hatchery effectiveness to minimize impacts to wild fish populations, ensure compatibility between hatchery production and salmon recovery programs, or support sustainable fisheries.
"Habitat project list" means the list of projects as described in RCW 77.85.010(3) compiled by a citizens' committee and submitted by a lead entity to the board as described in RCW 77.85.050(3). The habitat project list shall establish priorities for individual projects and define the sequence for project implementation as described in RCW 77.85.050. The list of projects in the habitat project list must be within the lead entity area as described in RCW 77.85.050(2). The habitat project list includes the lead entity ranked project list.
"Lead entity" means a city, county, conservation district, special purposes district, tribal government, regional recovery organization or other entity that is designated jointly by any one or more of the counties, cities, and Native American tribes within the lead entity area as described in RCW 77.85.050.
"Lead entity area" means the geographic area designated jointly by any one or more of the counties, cities, and Native American tribes within that area, which is based, at a minimum, on a watershed resource inventory area, as described in RCW 77.85.010(13), combination of water resource inventory areas, or any other area as described in RCW 77.85.050(2).
"Lead entity ranked project list," also known as the "habitat work schedule," means those projects on the habitat project list that will be implemented in the current funding cycle per RCW 77.85.010(4) and as described in RCW 77.85.060.
"Manual(s)" means a compilation of state and federal laws; board rules, policies((,)) and procedures((, rules,)); and director procedures, forms, and instructions ((that have been)) assembled in manual form ((and which have been approved by the office)) for dissemination ((by paper, electronic or other formats to all who may wish)) to parties that participate in the board's or office's grant program(s).
"Match" or "matching share" means the portion of the total project cost in the project agreement provided by the project sponsor.
"Monitoring or research project" means a project that monitors the effectiveness of salmon recovery restoration actions, or provides data on salmon populations or their habitat conditions.
"Office" means the recreation and conservation office ((or the office of recreation and conservation)) as described in RCW 79A.25.010.
(("Preliminary expense" means project costs incurred prior to board approval, other than site preparation/development costs, necessary for the preparation of a development project.)) "Planning project" means a project that results in a study, assessment, project design, or inventory.
"Preagreement cost" means a project cost incurred before the period of performance identified in the project agreement.
"Project" means the undertaking which is, or may be, funded in whole or in part with funds administered by the office on behalf of the board.
(("Project agreement" means a project agreement, supplemental agreement, intergovernmental agreement, or project contract between the office acting on behalf of the board, and a project sponsor.
"Project))
"Project area" means the area consistent with the geographic limits of the scope of work of the project. For restoration projects, the project area must include the physical limits of the project's final site plans or final design plans. For acquisition projects, the project area must include the area described by the legal description of the properties acquired in the project.
"Regional recovery organization" or "regional salmon recovery organization" means an organization described in RCW 77.85.010(7).
"Reimbursement" means the payment of funds from the office to the sponsor for eligible and allowable project costs that have already been paid by the sponsor per the terms of an agreement.
"Restoration project" means to bring a site back to its historic function as part of a natural ecosystem or improving or enhancing the ecological functionality of a site.
"Salmon recovery region" means a geographic area as described in RCW 77.85.010(10).
"Sponsor" means an eligible applicant under RCW 77.85.010(6) who has been awarded a grant of funds((, and has a signed)) and is bound by an executed project agreement; includes its officers, employees, agents, and successors.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-015 Address.
All communications with the board, office, director and staff shall be directed to the recreation and conservation office at the Natural Resources Building, 1111 Washington Street S.E., P.O. Box 40917, Olympia, Washington 98504-0917. Telephone 360-902-3000, fax 360-902-3026, web site www.rco.wa.gov.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-020 ((Organization and operations.)) Duties of the board.
((The board:
(1) Is an unsalaried body of ten members. Five members are citizens appointed by the governor from the public-at-large, with the consent of the senate, for a term of three years each. The other members are the:
(a) Commissioner of public lands;
(b) Director of the department of fish and wildlife;
(c) Director of the state conservation commission;
(d) Director of the department of ecology; and
(e) Secretary of transportation (or the designees of these individuals).
The five citizen members, including the chair, are voting members. The chair of the board is appointed by the governor from among the five citizen members.
(2) Is authorized and obligated to administer grant programs for salmon recovery, and related programs and policies.
(3) Performs and accomplishes work by a staff)) (1) The board was created by the legislature in the Salmon Recovery Funding Act of 1999 (section 3, chapter 13, Laws of 1999 special session) codified in RCW 77.85.110.
(2) Membership of the board is defined in RCW 77.85.110.
(3) The board is authorized to:
(a) Allocate and administer funds for salmon habitat projects and salmon recovery activities from amounts appropriated by the legislature as described in RCW 77.85.120;
(b) Develop procedures and criteria for allocation of funds for salmon habitat projects and salmon recovery activities on a statewide basis to address the highest priorities for salmon habitat protection and restoration as described in RCW 77.85.130(1);
(c) Adopt an annual allocation of funding as described in RCW 77.85.130(1);
(d) Establish a maximum amount of funding available for any individual project as described in RCW 77.85.130(1);
(e) Establish criteria for determining the award of grants for capacity funding as described in RCW 77.85.130(4);
(f) Give preference and consideration to projects as described in RCW 77.85.130(2);
(g) Require applicants to incorporate the environmental benefits of the project into their grant applications, and utilize the statement of environmental benefits in its prioritization and selection process as described in RCW 77.85.135;
(h) Adopt procedures for lead entities to submit habitat project lists as described in RCW 77.85.050, including establishing the submission deadlines;
(i) May reject, but not add, projects from a habitat project list submitted by a lead entity for funding as described in RCW 77.85.130(3);
(j) Develop appropriate outcome-focused performance measures to be used both for management and performance assessment of the grant program as described in RCW 77.85.135; and
(k) Provide the legislature with a list of the proposed projects and a list of the projects funded as described in RCW 77.85.140.
(4) The board does not own or operate any salmon recovery properties or facilities.
(5) The board is not a public hearings board and does not decide land use issues. To the extent possible, all project proposals should demonstrate adequate public notification and review and have the support of the public body applying for the grant or where the project is located.
(6) The office, under the supervision of the director appointed by the governor, performs and accomplishes work on behalf of the board.
(((4))) (7) The board:
(a) Conducts regular meetings, pursuant to RCW 42.30.075, according to a schedule it adopts in an open public meeting((.));
(b) May conduct special meetings at any time, pursuant to RCW 42.30.080, if called by the chair((.));
(c) Maintains an official record of its meetings in a recorded audio format, unless written minutes are otherwise indicated for logistical reasons((.
(5)));
(d) Defines a quorum as three of its voting members, with a preference that at least two of the agency members shall also be present((.
(6))); and
(e) Adopts parliamentary meeting procedure generally as described in Robert's Rules of Order. Only voting members may make motions or formal amendments, but agency members may request the chair for leave to present a proposal for board consideration.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-030 ((Manuals and waivers—Guidance.)) Policies and procedures.
(1) The board shall adopt ((one or more manuals that describe its general administrative policies, for use by grant applicants, potential applicants, project sponsors, and others. The board shall inform all applicants in any given grant cycle of the specific project application process and methods of review, including current evaluation tests and instruments, by explaining these items in the manuals or other publicly available formats. Manuals may be adopted for each grant cycle, or for a topical issue, and shall contain a clear statement of the applicability of the policies outlined. The board also instructs the director to use applicable office administrative manuals for general guidance in the implementation of board grant contracts. These include manuals regarding land acquisition, conservation easements, funded projects, and reimbursement procedures.
(2) Board policies, including those referenced in the manuals, shall be considered and approved by the board in an open public meeting. Notice of such considerations will be given by distribution of the agenda for the meeting, press releases, meeting notice in the Washington State Register, or other means.
(3) Project)) plans, policies, and procedures per the duties of the board as described in WAC 420-04-020. Board policies shall be considered and approved by the board in an open public meeting. Notice of such considerations will be given by distribution of the agenda for the meeting, press releases, formal meeting notice in the Washington State Register, or other such means as appropriate.
(2) The director shall approve procedures per the duties of the director in WAC 420-04-060 (1)(c).
(3) The office shall publish the policies and the procedures and make them available to applicants, sponsors, and other interested parties.
(4) Applicants, ((project)) sponsors, or other interested parties may petition the director for a waiver or waivers of those items ((within the manuals)) dealing with ((general)) administrative ((matters and)) procedures. The director may refer any petition on an administrative procedure to the board for determination. Determinations on petitions for such waivers made by the director are subject to review by the board at the request of the petitioner.
(((4))) (5) Applicants, sponsors, or other interested parties may petition the board for a waiver or waivers of those items dealing with policy and procedures. Petitions for waivers of subjects regarding board policy((, and)) and procedures, those petitions ((that in the judgment of)) referred by the director ((require)) to the board ((review)), and determinations made in subsection (4) of this section at the request of a petitioner, shall be ((referred to)) considered by the board ((for deliberation. Policy waivers may be granted after consideration by the board)) at an open public meeting.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-060 ((Delegated)) Director's authority.
(1) Consistent with RCW 79A.25.240 and other applicable laws, the director is delegated the authority and responsibility to carry out policies and administrative functions of the board. This includes, but is not limited to, the authority to:
(((1) Administer board programs;
(b) Provide all necessary grants and loans administration assistance to the board, and distribute funds as provided by the board in RCW 77.85.130 as described in RCW 77.85.120;
(c) Approve all procedures, except the procedures for lead entities to submit habitat project lists described in WAC 420-04-020 (3)(h), to implement the board's policies and general grant administration;
(d) Enter into contracts and agreements with applicants upon approval of the board;
(e) Administer all applicable rules, regulations and requirements established by the board or reflected in the laws of the state;
(((3))) (f) Implement board decisions; ((and
(4))) (g) Approve certain waiver requests ((or other administrative matters)) as described in WAC 420-04-030 and certain amendments to project agreements as determined by board policy;
(h) Appoint such technical and other committees as may be necessary to carry out the purposes of this chapter; and
(i) Approve the contents, requirements and format for receiving grant applications.
(2) The director may waive the board's administrative rules or policies only after the board has delegated such authority in an open public meeting.
(3) Consistent with chapter 77.85 RCW and other applicable laws, the director has authority and responsibility to carry out actions to support salmon recovery. This includes, but is not limited to, the authority to:
(a) Administer funding to support the functions of lead entities as described in RCW 77.85.050;
(b) Provide administrative support to the governor's salmon recovery office as described in RCW 77.85.030;
(c) Track all funds allocated for salmon habitat projects and salmon recovery activities on behalf of the board, including both funds allocated by the board and funds allocated by other state or federal agencies for salmon recovery or water quality improvement as described in RCW 77.85.140;
(d) Produce a biennial report on the statewide status of salmon recovery and watershed health, summarize projects and programs funded by the salmon recovery funding board, and summarize progress as measured by high-level indicators and state agency compliance with applicable protocols established by the forum for monitoring salmon recovery and watershed health as described in RCW 77.85.020; and
(e) Administer other programs related to salmon recovery as delegated by the legislature, governor, or through interagency agreements with other state agencies.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-04-070 Compliance with the State Environmental Policy Act ((guidelines)) and other laws.
(1) The ((board finds that, pursuant to RCW 43.21C.0382, all of its)) board's and office's activities and programs are exempt from threshold determinations and environmental impact statement requirements under the provisions of WAC 197-11-875.
(2) To the extent applicable, it is the responsibility of ((applicants and project)) sponsors to comply with the provisions of chapter (( 43.21C RCW)) 197-11 WAC, the State Environmental Policy Act rules((, the National Environmental Protection Act, and to obtain associated land-use and regulatory permits and reviews)) and comply with all applicable federal, state, and local laws and regulations regardless of whether the sponsor is a public or private organization.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-04-080 Petitions for declaratory order((—Petition requisites—Consideration—Disposition)) of a rule, order, or statute.
(1) Any person may submit a petition for a declaratory order pursuant to RCW 34.05.240 in any written form so long as it:
(a) Clearly states the question the declaratory order is to answer; and
(b) Provides a statement of the facts which raise the question.
(2) The director may conduct an independent investigation in order to fully develop the relevant facts.
(3) The director ((shall)) will present the petition to the board at the first meeting when it is practical to do so and will provide the petitioner with at least five days notice of the time and place of such meeting. Such notice may be waived by the petitioner.
(4) The petitioner may present additional material and/or argument at any time prior to the issuance of the declaratory order.
(5) ((The board may issue either a binding or a nonbinding order or decline to issue any order.
(6))) The board may decide that a public hearing would assist its deliberations and decisions. If such a hearing is ordered, it will be placed on the agenda of a meeting and at least five days notice of such meeting shall be provided to the petitioner.
(((7) If an order is to be issued, the petitioner shall be provided a copy of the proposed order and invited to comment.
(8) The declaratory order cannot be a substitute for a compliance action and is intended to be prospective in effect.
(9) The board will decline to consider a petition for a declaratory or to issue an order when:
(a) The petition requests advice regarding a factual situation which has actually taken place; or
(b) When a pending investigation or compliance action involves a similar factual situation.))
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-04-085 Petitions for ((rule making)) adoption, amendment, or repeal((—Form—Consideration—Disposition)) of a rule.
Any person may submit a petition requesting the adoption, amendment or repeal of any rule by the board, pursuant to RCW 34.05.330 and the uniform rules adopted by the office of financial management that are set forth in chapter 82-05 WAC.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-04-100 Public records ((access)).
(1) The board is committed to public access to its public records. All public records of the board, as defined in RCW 42.56.070 as now or hereafter amended, are available for public inspection and copying pursuant to this regulation, except as otherwise provided by law((,)) including, but not limited to, RCW 42.56.050 and 42.56.210.
(2) The board's public records shall be available through the public records officer designated by the director. All access to the board's records ((access for board records)) shall be conducted in the same manner as ((records access for office records, including office location, hours, copy fee and request forms. The board adopts by reference the records access procedures of the office and charges the director to administer for access purposes the board's records in the same manner as records of the office are administered, pursuant to)) in chapter 286-06 WAC.
(3) ((Any person who objects to the denial of a request for a public record of the board may petition the director for review by submitting a written request. The request shall specifically refer to the written statement which constituted or accompanied the denial.
(4) After receiving a written request for review of a decision denying inspection of a public record, the director, or designee, will either affirm or reverse the denial by the end of the second business day following receipt according to RCW 42.56.520. This shall constitute final board action. Whenever possible in such matters, the director or designee shall consult with the board's chair and members.)) The office will include language in the project agreement that requires sponsors that are not subject to public disclosure requirements under chapter 42.56 RCW to disclose any information in regards to funding as if the sponsor were subject to chapter 42.56 RCW (RCW 77.85.130(8)).
REPEALER
The following sections of the Washington Administrative Code are repealed:
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-010 Scope of chapter.
(1) This chapter contains general rules for grant program eligibility, applications, and projects funded with money from or through the board.
(2) The director may apply the rules in this chapter to programs administered by the office but which are not subject to the board's approval.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-020 Application ((form)) requirements and the evaluation process.
(1) The board shall adopt a technical review and evaluation process to guide it in allocating funds to and among applicants. The board's technical review and evaluation process for applications and habitat project lists shall:
(a) Be developed, to a reasonable extent, through the participation of interested parties and specialists, and include best available science;
(b) Consider regional recovery plans goals, objectives, and strategies;
(c) Be adopted by the board in open public meetings;
(d) Be made available in published form to interested parties;
(e) Be designed for use by an independent state technical review panel or team of evaluators with relevant expertise when selected for this purpose; and
(2) The office shall administer the technical review and evaluation process adopted by the board and prepare funding options or recommendations for the director to present for the board's consideration.
(3) The office shall inform all applicants of the application requirements and the technical review and evaluation process. All grant requests must be completed and submitted to the office in the format ((and manner)) prescribed by the ((board)) director.
(((2))) If the director determines that the applicant is eligible to apply for federal funds administered by the board, the applicant must execute any additional forms necessary for that purpose.
(4) All applications for funding submitted to the office that meet the application requirements will be referred to the director for review and recommendations. In reaching a recommendation, the director shall seek the advice and counsel of the office's staff and other recognized experts, including an independent state technical review panel or team of evaluators or from other parties with relevant experience.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-030 Grant program deadlines((—Applications and agreements)).
(1) Applications((. To allow time for review, applications)) must be submitted by the ((announced)) due date approved by the board. Unless otherwise authorized by the board, the director and staff have no authority to extend the application filing deadlines. Excepted are applications for programs where the director specifically establishes another deadline to accomplish new or revised statutory direction, board direction, or to meet a federal grant application deadline.
(2) ((Project agreement.)) To prepare a project agreement, certain documents or materials in addition to the application may be required by the office. These documents or materials must be provided by the applicant to the office at least two calendar months after the date the board or director approves funding for the project or earlier to meet a federal grant program requirement. After this period, the board or director may rescind the offer of grant funds and reallocate the grant funds to another project(s).
(3) An applicant has three calendar months from the date ((of)) the ((board's mailing of)) office sends the project agreement ((document to execute)) to sign and return the agreement to the ((board's)) office. After this period, the board or director may reject any agreement not ((completed,)) signed and returned, and ((may)) reallocate the grant funds to another project(s). ((The director may waive compliance with this deadline for good cause.))
(4) Compliance with the deadlines is required unless it is extended by the board or director. Such extensions are considered based on several factors which may vary with the type of extension requested, including any one or more of the following:
(a) Current status and progress made to meet the deadline;
(b) The reason the established deadline could not be met;
(c) When the deadline will be met;
(d) Impact on the board's evaluation process;
(e) Equity to other applicants; and
(f) Such other information as may be relevant.
AMENDATORY SECTION (Amending WSR 14-13-071, filed 6/13/14, effective 7/14/14)
WAC 420-12-040 Eligible matching resources.
(1) Applicant resources used to match board funds ((may include: Cash, certain federal funds, the value of privately owned donated real estate, equipment, equipment use, materials, labor, or any combination thereof. The specific eligible matches for any given grant cycle shall be detailed in the published manual. The director shall require documentation of values.)) must be eligible in the grant program. Sources of matching resources include, but are not limited to, any one or more of the following:
(a) Appropriations and cash;
(b) Value of the applicant's expenses for labor, materials, and equipment;
(c) Value of donated real property, labor, services, materials, and equipment use; and
(d) Grant funds.
(2) Agencies and organizations may match board funds with other state funds, including recreation and conservation funding board funds, so long as the other state funds are not administered by the board and if otherwise allowed by state law. For the purposes of this subsection, grants issued by other agencies under the Jobs for Environment program and the Forests & Fish program are not considered to be administered by the board.
(3) ((Private donated real property, or the value of that property, must consist of real property (land and facilities) that would otherwise qualify for board grant funding.
(4))) The eligibility of federal funds to be used as a match is governed by federal requirements and thus may vary with individual proposals and grant cycles.
NEW SECTION
WAC 420-12-045 Final decision.
(1) The board shall review recommendations from the director for grant awards at regularly scheduled open public meetings.
(2) The board retains the authority and responsibility to accept or deviate from the director's recommendations and make the final decision concerning the funding of an application or change to a funded project. Unless otherwise required by law, the board's decision is the final decision.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-050 Project agreement.
(1) For every funded project, an agreement shall be executed within the deadlines in WAC 420-12-030 and as provided in this section.
(((1))) (2) The project agreement shall be prepared by the ((director)) office after approval of the project by the board at a public meeting. ((The director shall execute the agreement on behalf of the board and submit the document to the applicant. After the applicant signs the agreement, the applicant becomes and is referred to as the project sponsor.)) The project agreement is executed upon the signature of the office and the applicant and the parties are then bound by the agreement's terms. The applicant shall not proceed ((with)) until the project ((until the)) agreement has been ((signed and the project start date listed in the agreement has arrived)) executed, unless ((the applicant has received)) specific authorization pursuant to WAC 420-12-070 has been given by the director.
(((2))) (3) If the project is approved by the board to receive a grant from federal funds, the director shall not execute an agreement or amendment with the applicant until federal funding has been authorized through execution of ((a concurrent project)) an agreement with the applicable federal agency((, if and as necessary)).
AMENDATORY SECTION (Amending WSR 02-05-050, filed 2/15/02, effective 3/18/02)
WAC 420-12-060 Disbursement of funds.
(1) Except as otherwise provided in this ((rule)) chapter, the ((director)) office will authorize disbursement of project funds only on a reimbursable basis((,)) at the percentage identified in the project agreement after the ((project)) sponsor has ((spent its own funds and has)) presented ((a billing showing satisfactory evidence of property rights acquired and/or)) an invoice documenting costs incurred and compliance with ((partial or all)) the provisions of the project agreement.
(((1) Reimbursement method. Reimbursement shall be requested on voucher forms authorized by the director. Requests must include all documentation as detailed in the manual in effect at the time reimbursement is requested.
(2) Reimbursement level.)) (2) The amount of reimbursement may never exceed the cash spent on the project by the sponsor.
(3) ((Partial payment. Partial reimbursements may be made during the course of a project on presentation of billings showing satisfactory evidence of partial acquisition or development by the project sponsor. The director may require written assurance that full project completion is scheduled by a specific date. In the event of appropriation reductions or terminations, the project agreement shall allow the board to suspend or terminate future obligations and payments.)) Reimbursement shall not be approved for any donations, including donated real property.
(4) ((Direct payment.)) Direct payment to an escrow account of the ((board's)) office's share of the approved cost of real property and related costs may be made following ((board)) office approval ((of an acquisition project)) when the ((project)) sponsor indicates a temporary lack of funds to purchase the property on a reimbursement basis. Prior to release of the ((board's share of escrow funds, the project)) office's share into escrow, the sponsor must provide the ((director)) office with a copy of a binding ((sale)) agreement between the ((project)) sponsor and the seller, all required documentation, and evidence of deposit of the ((project)) sponsor's share (((if any))), identified in the project agreement, into an escrow account.
(5) Advance payments may be made in limited circumstances only, pursuant to the policy outlined in the adopted reimbursement manual.
(6) ((Payment deadline.)) As required by RCW 77.85.140, sponsors who complete salmon habitat projects approved for funding from habitat project lists will be paid by the board within thirty days of project completion. This means the board will issue a reimbursement within thirty days of the sponsor's completion of the billing requirements described in the board's reimbursement policy manual.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-070 Retroactive ((expenses)), preagreement, and increased costs.
((The definitions in WAC 420-04-010 apply to this section.
(1) The board shall not reimburse expenses for activities undertaken, work performed or funds expended before the date on which the agreement was signed. This policy is referred to as the board's prohibition on retroactivity. The only exceptions are as outlined in the adopted reimbursement manual, for certain preliminary expenses.
(2) If such exceptions do not apply, a waiver may be issued to avoid the prohibition on retroactivity only under the following circumstances, for retroactive land acquisition cost reimbursements:)) (1) Unless otherwise provided in this chapter, the office shall not approve the disbursement of funds for costs incurred before execution of a project agreement.
(2) The office will only reimburse costs that occur within the period of performance in the project agreement.
(3) The director may grant a waiver of retroactivity ((when)) for acquiring real property whenever an applicant ((documents)) asserts, in writing, ((that a condition exists which may jeopardize the project)) the justification for the critical need to purchase the property in advance of the project agreement along with any documentation required by the director. When evidence warrants, the director may grant the applicant permission to proceed prior ((to the signing of an agreement)) by issuing ((the)) a written waiver. This waiver of retroactivity ((shall)) will not be construed as an approval of the proposed project. If the project is subsequently approved ((for board funding, the expenditures described in the waiver incurred shall be eligible for assistance if they otherwise satisfy the reimbursement requirements under WAC 420-12-060.
(3) Cost increases. The board shall reimburse only for allowable expenses under WAC 420-12-070. If costs increase after the agreement is signed, a project sponsor is solely responsible, unless the adopted manual for the relevant grant cycle specifically establishes a cost-increase method for that cycle.)), however, the costs incurred will be eligible for grant funding. If the project is to remain eligible for funding from federal funds, the director shall not authorize a waiver of retroactivity to the applicant until the federal agency administering the federal funds has issued its own waiver of retroactivity as provided under its rules and regulations. A waiver may be issued for more than one grant program.
(4) The only retroactive acquisition, development, and restoration costs eligible for grant funding are preagreement costs as defined by the board.
(5) Cost increases for approved projects may be granted by the board or director if financial resources are available.
(a) Each cost increase request will be considered on its merits.
(b) The director may approve a cost increase delegated by the board. The director's approval of an acquisition project cost increase is limited to a parcel-by-parcel appraised and reviewed value.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-075 Nonconformance and repayment.
((In the event any project sponsor's expenditure of board grant moneys is determined)) Any project cost deemed by the board or director to conflict with applicable statutes, rules and/or related manuals, or the project agreement, ((the board reserves the right to demand repayment)) must be repaid, upon written request by the director, to the appropriate state account((, by written notice from the director to the project sponsor)) per the terms of the project agreement. Such repayment requests may be made ((following)) in consideration of an applicable report from the state auditor's office.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-080 Acquisition project((s—Deed of right, conversions, leases and easements)) long-term obligations.
(1) Without prior approval of the board, the project area of a facility or property acquired with money granted by the board shall not be converted to a use other than that for which funds were originally approved. The board shall only approve such a conversion under conditions which assure the substitution of other land that is eligible for grant funding and of at least equal fair market value at the time of conversion, and of as nearly feasible equivalent usefulness and location.
(2) For acquisition projects of perpetual interest in real property, sponsors must execute a binding instrument(s) ((or instruments)) which contains((:
(1) For fee, less-than-fee, and easement acquisition projects)) the following provisions:
(a) A legal description of the property acquired with grant funds which defines the project area;
(b) A conveyance to the state of Washington of the right to use the described real property forever for the designated salmon habitat protection purposes; and
(c) A restriction on conversion of use of the land.
((Without prior approval of the board, a facility or property acquired with money granted by the board shall not be converted to a use other than that for which funds were originally approved. The board shall only approve such a conversion under conditions which assure the substitution of other land of at least equal fair market value at the time of conversion, and of as nearly feasible equivalent usefulness and location.
(2) For lease acquisition projects,)) (3) For acquisition of nonperpetual interests in real property, except for leases, sponsors must execute a binding instrument(s) which contains the following provisions:
(a) A legal description of the property acquired which defines the project area;
(b) A conveyance to the state of Washington of the right to use the described real property for the term of the nonperpetual interest for the designated salmon habitat protection purposes; and
(c) A restriction on conversion of use of the land.
(4) For acquisition of lease interests, sponsors must execute a binding ((agreement)) instrument(s) which contains a legal description of the ((property)) project area and rights acquired ((and)) which ((meets the following criteria. The interest)):
(a) Must be for at least fifty years unless precluded by state law;
(b) May not be revocable at will;
(c) Must have a value supported through standard appraisal techniques;
(d) Must be paid for in lump sum at initiation; and
(e) May not be converted, during the lease period, to a use other than that for which funds were originally approved, without prior approval of the board.
AMENDATORY SECTION (Amending WSR 01-04-052, filed 2/2/01, effective 3/5/01)
WAC 420-12-085 ((Development)) Restoration projects—Conversion to other uses.
(1) Without prior approval of the board, a facility or ((site aided or developed)) project area restored with money granted by the board, shall not be converted to a use other than that for which funds were originally approved.
(2) The board shall only approve such a conversion under conditions which assure that:
(a) All practical alternatives to the conversion have been evaluated and rejected on a sound basis;
(b) A new restoration project or facility will be provided to serve as a replacement which:
(i) Is of reasonably equivalent habitat utility and location;
(ii) Will be administered under similar stewardship methods as the converted development;
(iii) Will satisfy need(s) identified in the project sponsor's watershed strategy or plan; and
(iv) Includes only elements eligible under the board's program from which funds were originally allocated.
(3) The board may condition any conversion approval as needed to protect the public habit investment.
| ||||||