BILL REQ. #:  H-0809.1 

Read first time 01/24/2003.   Referred to Committee on Transportation.

     AN ACT Relating to incentives to increase transportation revenues by increasing transportation permit efficiency; amending RCW 47.01.290; adding a new section to chapter 77.55 RCW; adding a new chapter to Title 47 RCW; creating a new section; and prescribing penalties.

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

Sec. 1   RCW 47.01.290 and 1994 c 258 s 3 are each amended to read as follows:
     The legislature recognizes that environmental review of transportation projects is a continuous process that should begin at the earliest stages of planning and continue through final project construction. ((Early and extensive involvement of the relevant environmental regulatory authorities is critical in order to avoid significant changes in substantially completed project design and engineering.)) Streamlining the permit approval process is essential for reducing project delays and for making the most efficient use of every transportation dollar. It is the expectation of the legislature that if a comprehensive environmental approach is integrated throughout various transportation processes, onerous, duplicative, and time-consuming permit processes will be minimized. To this end, the legislature directs that substantive standards and best management practices governing the construction of transportation projects be jointly agreed upon by both the department and Washington's natural resource agencies. After these substantive standards have been agreed upon, the legislature finds that the greatest efficiency and effectiveness in both protecting our environmental resources and in constructing the transportation infrastructure required to serve Washington's growing population will come from the implementation of these standards by the department itself, with appropriate oversight, as defined in this act, by both natural resource agencies and local governments.

NEW SECTION.  Sec. 2   DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Best available information" means the existing sources of data, including limiting factors analyses required under chapter 77.85 RCW, that can be used to make informed decisions regarding environmental conditions within a watershed.
     (2) "Best management practices" means currently available and generally accepted techniques, including new technologies or strategies that seek to reduce the negative impacts of transportation facilities, projects, and services on communities and the environment.
     (3) "Committee" means the transportation permit efficiency and accountability committee created in section 3 of this act.
     (4) "Least-cost planning" means the use of best available information within a watershed basin applied to transportation decision making in the planning, permitting, and mitigation phases of a project.
     (5) "Programmatic permit" means a regulatory instrument that outlines permit conditions and obligations for a variety of similar project activities spanning a watershed ecosystem or geographically defined boundary, that once entered into by parties, delineates an applicant's proposed actions over a specific period of time, that may be conducted without the necessity of obtaining individual permits for the types of projects identified.
     (6) "Transportation project of statewide significance" means a project or combination of projects that crosses two or more city or county jurisdictional boundaries.

NEW SECTION.  Sec. 3   TRANSPORTATION PERMIT EFFICIENCY AND ACCOUNTABILITY COMMITTEE--CREATED. The transportation permit efficiency and accountability committee is created.
     (1) The committee will consist of nine voting members, including two members from the house of representatives, one each selected by the speaker and the minority leader of the house; two members of the senate, one each selected by the senate majority leader and the senate minority leader; one member designated by the secretary of transportation; one member designated by the director of fish and wildlife; one member designated by the director of ecology; one member designated by the Association of Washington Cities, and one member designated by the Washington State Association of Counties. The committee shall elect a chair from the four legislators appointed to the committee.
     (2) Representatives of additional organizations or groups, including but not limited to the following organizations and groups, may be invited by the committee to appear before the committee and advise and provide input to the committee: The state commissioner of public lands; the Northwest Indian Fisheries Commission; the Columbia River Intertribal Fisheries Commission; the Consulting Engineers Council of Washington; the Associated General Contractors of Washington; the Washington Construction Industry Council; the Association of Washington Business; the Building Industry Association of Washington; any statewide environmental organization; the state fish and wildlife commission; the federal Environmental Protection Agency; the National Marine Fisheries Service; the Federal Highway Administration; and the United States Fish and Wildlife Service.
     (3) The committee may create technical subcommittees to assist with drafting of and advice on decisions to adopt the standards described in section 4(1)(a) of this act. In order to use the broadest range of expertise available in writing the substantive standards, the committee may appoint any individual or any representative from any organization or agency as nonvoting members of these technical subcommittees to assist in developing standards governing specific topics.
     (4) Legislative members of the committee will be reimbursed for travel expenses as provided in RCW 44.04.120.
     (5) The department of transportation office of environmental affairs shall provide administrative and clerical assistance to the committee.

NEW SECTION.  Sec. 4   COMMITTEE--RESPONSIBILITIES. (1) By December 31, 2003, the committee shall:
     (a) Develop concise environmental standards and best management practices for transportation projects that can be applied with certainty, consistency, and assurance of swift permit action, while taking into account the varying climate, geomorphologic, and hydrologic conditions throughout the state. The standards and best management practices must conform to all current relevant federal and state environmental regulations, and must be sufficient to protect critical areas as defined in chapter 36.70A RCW. Actions to achieve this goal must include identification and development of standards to govern both programmatic permits and individual project permits. Actions to achieve this goal may include the adoption of existing environmental standards, such as existing storm water manuals or other existing sources of standards and best management practices, if the committee decides that these existing resources meet or constitute state or federal environmental standards. These existing resources may be incorporated by reference into the standards developed by the committee. Nothing in this chapter may be interpreted as providing the committee any authority to engage in rule making other than for the purpose of drafting or adopting the standards specified in this subsection. Nothing in this chapter may be interpreted as expanding the rule-making authority of any state agency or as providing rule-making authority for any state agency, including those agencies participating on the committee;
     (b) Create a streamlined consultation process for transportation projects for section 404 federal Clean Water Act and section 10 permits issued by the United States Army Corps of Engineers;
     (c) Develop a least-cost methodology for analyzing environmental impacts and applying compensatory mitigation consistent with a watershed-based approach before final design;
     (d) Assess models to collate and access watershed data to support early agency involvement in transportation planning and reviews under the federal Environmental Protection Act and the State Environmental Protection Act;
     (e) Develop procedures to use existing best available information from a variety of sources including, but not limited to, watershed planning efforts, lead entities, regional fisheries enhancement groups, the salmon and steelhead inventory assessment project (SSIAHP), and other recognized entities as deemed appropriate by the committee, in order to determine potential mitigation site requirements for project actions within a watershed. Priority consideration should be given to the use of the state's alternative mitigation strategy to best link transportation mitigation needs with local watershed and lead entity project lists;
     (f) Ensure that the department seeks federal delegation authorities to the state where appropriate to streamline permit processes including: Delegation of section 404 permit authority under the federal Clean Water Act; nonfederal lead agency status under the federal Endangered Species Act; section 106 cultural resource designation under the National Historic Preservation Act; and other appropriate authority that when delegated should result in permit streamlining.
     (2) Upon completion of the drafting and adoption of the standards referred to in subsection (1)(a) of this section, the committee shall suspend its operation until it is reconvened to amend existing standards or draft or adopt additional standards as provided by section 9(4) of this act, or until it is required to draft a remediation plan as provided by section 9(3) of this act.

NEW SECTION.  Sec. 5   (1) Upon completion of the standard drafting or adoption process specified in section 4(1)(a) of this act, the department of ecology and the department of fish and wildlife shall delegate, to the maximum extent consistent with federal law, all environmental permitting authority currently exercised by these agencies, including, but not limited to, chapters 90.48, 90.58, and 77.55 RCW. The department of ecology and the department of fish and wildlife shall delegate authority by certifying the department to self-permit with regard to all state environmental permits currently issued, approved, or consulted upon by the department of ecology and the department of fish and wildlife.
     (2) As part of the department's self-permitting process, the department shall, before issuing the final permit for a transportation project of statewide significance, send a draft copy of the permit to both the department of ecology and the department of fish and wildlife for review and comment. The departments of ecology and fish and wildlife shall limit their comments to whether the department has complied with the substantive standards and best management practices developed under section 4(1)(a) of this act. The departments of ecology and fish and wildlife have thirty days to review and comment on the draft permit.
     (3) Upon completion of the drafting or adoption process specified in section 4(1)(a) of this act, the department shall review the department's construction project list to determine which projects can be included in programmatic or general permits under the standards adopted under section 4(1)(a) of this act. The department shall issue seventy percent of delegated permits through use of the programmatic and general permits consistent with the standards.

NEW SECTION.  Sec. 6   (1) Upon the certification provided for by section 5 of this act or recertification provided for by section 9 of this act, the department is exempt from obtaining any permit issued by a county, city, or town, regarding a transportation project of statewide significance, including, but not limited to, any permit issued under chapter 90.58 RCW, any permit related to regulation of critical areas under chapter 36.70A RCW, and any permit required for filling, grading, building, or construction, or any other permit required for a transportation project of statewide significance, that would otherwise be issued under a local ordinance meeting the definition of a development regulation under chapter 35.63, 35A.63, 36.70, 36.70A, or 36.70B RCW.
     (2) For transportation projects of statewide significance, the department shall serve as the lead entity for all review required under the State Environmental Protection Act (SEPA), chapter 43.21C RCW. Nothing in this section may be construed as limiting the ability of local governments to participate in the SEPA process as provided for in chapter 43.21C RCW.
     (3) In addition to local government participation in the SEPA process and as part of the self-permitting process set forth in this chapter, the department shall, before issuing the final permit for a transportation project of statewide significance, send a draft copy of the permit to each local government in whose jurisdiction the project is being constructed for review and comment. Each local government will have thirty days to review and comment on the draft permit.

NEW SECTION.  Sec. 7   The department of ecology and the department of fish and wildlife may conduct inspections of projects performed by the department of transportation where the department of transportation has issued permits under authority delegated by the department of ecology or the department of fish and wildlife. If an inspector from the department of ecology or the department of fish and wildlife discovers an example of substantial noncompliance with the standards developed under section 4 of this act, the inspector shall document that example and issue a detailed report of that example, which shall be transmitted to the department of transportation. The department of transportation may issue a formal response to the report addressing whether it believes that the department or its contractors failed to substantially comply with the standards developed under section 4 of this act.

NEW SECTION.  Sec. 8   Every two years the department shall send to the legislature, the governor, the department of ecology, and the department of fish and wildlife a report detailing its self-permitting activities over the previous two years. The report must include a detailed description of all permits issued during the previous two years and must include detailed analysis of all instances of noncompliance with the standards developed under section 4(1)(a) of this act, as well as all measures taken to prevent any future noncompliance.

NEW SECTION.  Sec. 9   (1) Every four years, the department of fish and wildlife and the department of ecology shall jointly conduct a review of the department's self-permitting practices. The department of ecology and the department of fish and wildlife shall submit a report on the performance of the department to the legislature and the governor. The report must include a recommendation as to whether the department should be decertified from self-permitting. The department of ecology and the department of fish and wildlife may recommend that the department be decertified from self-permitting only if they find that the department has engaged in repeated substantial noncompliance with the substantive standards developed and adopted under section 4(1)(a) of this act. The department of ecology and the department of fish and wildlife shall specifically identify all instances of substantial noncompliance, and shall additionally identify measures that could be implemented to prevent the substantial noncompliance in the future. For purposes of this section, "repeated substantial noncompliance" means repeated failure to meet the substantive standards and best management practices developed and adopted under section 4(1)(a) of this act that causes more than de minimis actual harm to fish and wildlife or their associated habitat.
     (2) Upon a joint finding by the department of ecology and the department of fish and wildlife that the department has engaged in repeated substantial noncompliance with the substantive standards developed under section 4(1)(a) of this act, the governor may decertify the department from self-permitting. The notice of decertification by the governor to the department must include written findings that support the basis for decertification. Upon decertification, all delegation of permitting authority from the departments of ecology and fish and wildlife, and the department's exemption from the requirements to obtain local permits as provided for in section 6(1) of this act, is suspended until the committee has developed and imposed a remediation plan as governed by subsection (3) of this section.
     (3) Upon decertification of the department by the governor under subsection (2) of this section, the committee shall meet and develop a remediation plan to identify and correct department procedures that were responsible for, or contributed to, the department's substantial noncompliance with the standards. The department shall implement the remediation plan developed by the committee. Upon full implementation of the remediation plan, the department of ecology and the department of fish and wildlife shall recertify the department to self-permit.
     (4) Following the four-year review specified in subsection (1) of this section, the department of ecology, the department of fish and wildlife, or the department of transportation may reconvene the committee and propose amendments or additions to the substantive standards adopted under section 4(1)(a) of this act. The committee shall use the same process for amending standards or adopting additional standards as were used to draft or adopt the initial standards as specified in section 4 of this act.

NEW SECTION.  Sec. 10   DEPARTMENT ORGANIZATION AND ADMINISTRATIVE ACTIONS. The legislature finds that an essential component of delegated federal or state permitting authority to the department is the ability of the department to demonstrate the capacity to meet environmental responsibilities. Therefore, the legislature directs that:
     (1) Environmental staff within the department shall lead the development of all environmental documentation associated with department projects and permit activities in accordance with the department's managing project delivery tools.
     (2) Certified environmental staff or certified consultants shall be given the responsibility to draft environmental permits for the department.
     (3) The department shall conduct special prebid meetings for projects that are environmentally complex. In addition, the department shall review environmental considerations related to these projects during the preconstruction meeting held with the contractor who is awarded the bid.
     (4) Environmental staff at the department shall conduct field inspections to ensure that project activities are performed under permit conditions. These inspectors may issue stop work orders when compliance with permit standards are not being met. For this portion of their job duties, the inspectors are accountable to the director of the office of environmental services of the department.
     (5) Failure to comply with a stop work order may result in civil penalties being assessed against the department and individuals involved. Willful violation by an agency or individual of a stop work notice issued by the department is subject to civil penalties. Continued failure to comply or willful violations by the department may result in loss of permit writing and program management responsibilities.

NEW SECTION.  Sec. 11   TRAINING AND COMPLIANCE. The legislature expects the department to continue its efforts to improve training and compliance. The department shall:
     (1) Provide training in environmental procedures and permit requirements for those responsible for project delivery activities;
     (2) Provide resource agency-approved certification training for permit writers and environmental inspectors;
     (3) Require wetland mitigation sites to be designed by biologists or landscape architects certified by the department of ecology's wetland program. Environmental mitigation site improvements must have oversight conducted by environmental staff;
     (4) Develop an environmental compliance data system to track all permit conditions; and
     (5) Keep detailed records of all noncompliance activities.

NEW SECTION.  Sec. 12   A new section is added to chapter 77.55 RCW to read as follows:
     Where the department of fish and wildlife has delegated hydraulic project permit approval authority contained in this chapter to the department of transportation under chapter 47.--- RCW (sections 2 through 11 of this act), the department of transportation will be substituted for the department of fish and wildlife in an appeal of the approval of a permit concerning a hydraulic project that is a transportation project of statewide significance as defined in section 2 of this act. The appeal process for the permits issued by the department of transportation under authority delegated by the department of fish and wildlife will operate in the same manner as for permits granted by the department of fish and wildlife under this chapter.

NEW SECTION.  Sec. 13   Captions used in this act are not part of the law.

NEW SECTION.  Sec. 14   Sections 2 through 11 of this act constitute a new chapter in Title 47 RCW.