5776-S.EAMHKESSH2821.1ESSB 5776H AMD393By Representative KesslerADOPTED 04/14/2003 Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. The purpose of this chapter is to reformthe process of appeal and review of final permit decisions made bystate agencies and local governments for qualifying economicdevelopment projects, by establishing uniform, expedited, andcoordinated appeal procedures and uniform criteria for reviewing suchdecisions, in order to provide consistent, predictable, and timelyreview. The appeal process authorized in this chapter is intended tobe the exclusive process for review of final decisions made by stateagencies and local governments on permit applications for qualifyingeconomic development projects, superseding other existingadministrative board and judicial appeal procedures.NEW SECTION.Sec. The definitions in this section applythroughout this chapter unless the context clearly requires otherwise. (1) "Board" means the environmental and land use hearings boardestablished in this chapter. (2) "Final decision" means the highest and last decision availablewithin the permit agency with respect to a permit application to theagency, including but not limited to decisions resulting from internalappeals available within the agency for the permit decision. (3) "Participating permit agency" means any permit agency in whichthe applicant for a qualifying project has filed an application for anenvironmental or land use permit that is required for the qualifyingproject. (4) "Permit" means any license, permit, certificate, certification,approval, compliance schedule, or other similar document pertaining toany regulatory or management program related to the protection,conservation, use of, or interference with the land, air, or water in 1 the state. This document must be required to be obtained from a stateagency or local government, including but not limited to counties,cities, and air agencies, prior to constructing or operating aqualifying project. Local government permits include, but are notlimited to, subdivisions, binding site plans, planned unitdevelopments, shoreline permits or other approvals under RCW 90.58.140,master plan approvals, site plan approvals, permits or approvalsrequired by critical area ordinances, conditional use permits,variances, and site-specific rezones authorized by a comprehensive planor subarea plan or other equivalent documents however titled ordenominated. Local government permits excluded under this definitioninclude the adoption or amendment of a comprehensive plan, subareaplan, legislative actions on development regulations, certifications bylocal health districts of water and sewer availability, and building,grading, flood hazard, utility connection, and other nondiscretionaryconstruction permits. (5) "Permit agency" means any state agency or local government,including but not limited to air agencies, authorized by law to issuepermits. (6) "Qualifying project" means an economic development project thatis (a) located within a county that in its entirety qualifies as adistressed area as defined in RCW 43.168.020(3) and a rural naturalresources impact area as defined in RCW 43.160.020, (b) designed toprovide at least thirty full-time year-round jobs, and (c) designatedas a qualifying project by the office of permit assistance establishedunder chapter 43.42 RCW if a request for a determination of suchdesignation is made to the office by the project applicant as providedunder this chapter.NEW SECTION.Sec. The appeal process authorized in thischapter shall, notwithstanding any other provisions of this code, bethe exclusive process for review of the decisions made by participatingpermit agencies on permit applications for a qualifying project. Thischapter shall not apply to applications for certification by the energyfacility site evaluation council pursuant to chapter 80.50 RCW. Thesuperior court civil rules and the rules of appellate procedure shall 2 govern procedural matters for the judicial appeal process under thischapter to the extent that the rules are consistent with this chapter.NEW SECTION.Sec. (1) Any applicant for a project that meetsthe criteria set forth in section 2(6) (a) and (b) of this act may usethe process of appeal and review of this chapter by filing with theoffice of permit assistance a request for a determination ofdesignation as a qualifying project as required in section 2(6)(c) ofthis act. Such request shall be filed with the office no later thanthirty days after the filing with a permit agency of the firstapplication for a permit relating to the subject project that is filedafter the effective date of this act. No requests may be filed withthe office of permit assistance after December 31, 2010. The requestshall include a list of permits that the project applicant reasonablybelieves will be required for the subject project. (2) The office of permit assistance shall: (a) Respond to suchrequest within thirty days after the filing of the request; and (b) ifthe office determines to designate the project as a qualifying projectunder section 2(6)(c) of this act, contemporaneously provide a copy ofthe designation response to all permit agencies responsible for theproject permits listed in the request. The office of permit assistanceshall provide notice of any project designation to the code reviser forpublication in the state register and to any persons that have filedwith the office of permit assistance a general request for such notice.Nothing in this section creates an independent cause of action oraffects any existing cause of action. (3) All final decisions of a permit agency notified undersubsection (2) of this section shall include the following sentence:Any appeal of this decision shall be in accordance with the provisionsof this chapter.NEW SECTION.Sec. (1) An environmental and land use hearingsboard is hereby established within the environmental hearings officecreated under RCW 43.21B.005. The environmental and land use hearingsboard shall be composed of six members, as provided in RCW 90.58.170.The chairperson of the pollution control hearings board shall be thechairperson of the environmental and land use hearings board. The 3 members of the environmental and land use hearings board shall receivethe compensation, travel, and subsistence expenses as provided in RCW43.03.050 and 43.03.060. (2) All proceedings before the board or any of its members shall beconducted in accordance with such rules of practice and procedure asthe board may adopt. In all such proceedings, the board shall have allpowers relating to the administration of oaths, issuance of subpoenas,and taking of depositions as set forth in RCW 34.05.446. The boardshall publish any such rules and arrange for the reasonabledistribution thereof. Failure to adopt such rules shall not deprivethe board of jurisdiction nor relieve the board of the duty to hearpetitions for review filed under this chapter.NEW SECTION.Sec. (1) Proceedings for review under thischapter shall be commenced by filing a petition with the environmentaland land use hearings board. The board may adopt by rule proceduresfor filing and service that are consistent with this chapter. (2) Such petition is barred, and the board may not grant review,unless the petition is timely filed with the board and timely served onthe following persons who shall be parties to the review of thepetition: (a) The participating permit agencies, which for purposes of thepetition shall be (i) if a state agency, the director thereof, and (ii)if a local government, the jurisdiction's corporate entity which shallbe served as provided in RCW 4.28.080; and (b) Each of the following persons if the person is not thepetitioner: (i) Each person identified by name and address as applicant in theapplication to the participating permit agencies; (ii) Each person identified in project application documents as anowner of the property at issue or, if none, each person identified asa taxpayer for the property at issue in the records of the countyassessor. (3) The petition is timely if it is filed and served on all partieslisted in subsection (2) of this section within twenty-one days of theissuance by the permit agency of the permit for the qualifying project. 4 (4) For the purposes of this section, the date on which a permitdecision is issued is: (a) Three days after a written decision is mailed by the permitagency to the project applicant or, if not mailed, the date on whichthe permit agency provides notice that a written decision is publiclyavailable; or (b) If (a) of this subsection does not apply, the date the decisionis entered into the public record. (5) Service on all parties shall be by personal service or by mail.Service by mail is effective on the date of mailing. Proof of serviceshall be by affidavit or declaration under penalty of perjury.NEW SECTION.Sec. Standing to bring a petition under thischapter is limited to the following persons: (1) The applicant and the owner of the property to which the permitdecision is directed; (2) Another person aggrieved or adversely affected by the permitdecision, or who would be aggrieved or adversely affected by a reversalor modification of the permit decision. A person is aggrieved oradversely affected within the meaning of this section only when all ofthe following conditions are present: (a) The permit decision has prejudiced or is likely to prejudicethat person; (b) That person's asserted interests are among those that thepermit agency was required to consider when it made its permitdecision; (c) A decision of the board in favor of that person wouldsubstantially eliminate or redress the prejudice to that person causedor likely to be caused by the permit decision; and (d) The petitioner has exhausted his or her administrative remediesto the extent required by law; (3) A participating permit agency under this chapter.NEW SECTION.Sec. A petition must set forth: (1) The name and mailing address of the petitioner; (2) The name and mailing address of the petitioner's attorney, ifany; 5 (3) The name and mailing address of the permit agency whose permitis at issue, if any; (4) A duplicate copy of the permit decision; (5) Identification of each person to be made a party under thischapter; (6) Facts demonstrating that the petitioner has standing to seekboard review under this chapter; (7) A separate and concise statement of each error alleged to havebeen committed; (8) A concise statement of facts upon which the petitioner reliesto sustain the statement of error; and (9) A request for relief, specifying the type and extent of reliefrequested.NEW SECTION.Sec. (1) Within seven days after receipt ofservice of the petition filed pursuant to section 6 of this act, theproject applicant shall file with the board and serve on all parties anaffidavit certifying all applications for permits that the projectapplicant has filed with participating permit agencies for thequalifying project, provided, however, that no permit may be includedthat has been issued and appealed to an administrative hearings boardor to court prior to the date of service of the petition filed with theboard under this chapter. The board shall request verification fromthe participating agencies of the permit applications certified in theproject applicant's affidavit and of the expected date for finaldecision on the permit applications. Filing of the affidavit shalltoll the schedule for hearing by the board until twenty-one days afterissuance of the final permit decision on the last permit required forthe qualifying project that has been certified in the projectapplicant's affidavit and verified by a participating agency as appliedfor, unless the petition filed and served by the petitioner relates tothe final permit decision. (2) Within seven days after the expiration of the appeal period forthe final permit decision on the last permit required for thequalifying project, the petitioner shall note an initial hearing onjurisdictional and other preliminary matters, and, if applicable, onother pretrial matters. This initial hearing shall be set no sooner 6 than thirty-five days and not later than fifty days after theexpiration of the appeal period for the final permit decision on thelast permit required for the qualifying project. (3) If petitions for review of more than one permit issued byparticipating permit agencies for a qualifying project are filed withthe board, the board shall contemporaneously process all such petitionsin accordance with the case schedule requirements set forth in thisact. (4) The parties shall note all motions on jurisdictional andprocedural issues for resolution at the initial hearing, except that amotion to allow discovery may be brought sooner. (5) The defenses of lack of standing, untimely filing or service ofthe petition, lack of good faith or improper purpose in filing, andfailure to join persons needed for just adjudication are waived if notraised by timely motion noted to be heard at the initial hearing,unless the board allows discovery on such issues. (6) The petitioner shall move the board for an order at the initialhearing that sets the date on which the permit decision record orrecords of the applicable permit agency or agencies, if any, must besubmitted, sets a briefing schedule, sets a discovery schedule ifdiscovery is to be allowed, and schedules a hearing or hearings on themerits. (7) The parties may waive the initial hearing by scheduling withthe board a date for the hearing or hearings on the merits and filinga stipulated order that resolves the jurisdictional and proceduralissues raised by the petition, including the issues identified insubsections (5) and (6) of this section. (8) A party need not file an answer to a petition for review filedpursuant to section 6 of this act.NEW SECTION.Sec. The board shall provide expedited review ofpetitions filed under this chapter. Any matter reviewed on thedecision record as provided in section 13(1) of this act must be setfor hearing within sixty days of the date set for submitting thedecision record of all participating permit agencies, absent a showingof good cause for a different date or a stipulation of the parties.Any matter reviewed de novo as provided in section 13(3) of this act 7 must be set for hearing or trial no later than one hundred twenty daysafter the initial hearing date. The board shall issue a final decisionand order within thirty days after the final hearing required in thissection.NEW SECTION.Sec. (1) A petitioner or other party may requestthe board to stay or suspend an action by a participating permit agencyor another party to implement the decision under review. The requestmust set forth a statement of grounds for the stay and the factualbasis for the request. (2) The board may grant a stay only if the board finds that: (a)The party requesting the stay is likely to prevail on the merits, (b)without the stay the party requesting it will suffer irreparable harm,(c) the grant of a stay will not substantially harm other parties tothe proceedings, and (d) the request for the stay is timely in light ofthe circumstances of the case. (3) The board may grant the request for a stay upon such terms andconditions, including the filing of security, as are necessary toprevent harm to other parties by the stay.NEW SECTION.Sec. (1) Within forty-five days after entry ofan order to submit the decision record, where applicable, or withinsuch a further time as the board allows or as the parties agree, eachparticipating agency shall submit to the board a certified copy of thedecision record for board review of the permit decision, except thatthe petitioner shall prepare at the petitioner's expense and submit averbatim transcript of any hearings held on the matter. (2) If the parties agree, or upon order of the board, the recordshall be shortened or summarized to avoid reproduction andtranscription of portions of the record that are duplicative or notrelevant to the issues to be reviewed by the board. (3) The petitioner shall pay the participating agency the cost ofpreparing the record before the participating agency submits thedecision record to the board. Failure by the petitioner to timely paythe participating agency relieves the participating agency ofresponsibility to submit the record and is grounds for dismissal of thepetition. 8 (4) If the relief sought by the petitioner is granted in whole orin part the board shall equitably assess the cost of preparing therecord among the parties. In assessing costs the board shall take intoaccount the extent to which each party prevailed and the reasonablenessof the parties' conduct in agreeing or not agreeing to shorten orsummarize the record under subsection (2) of this section.NEW SECTION.Sec. (1) For all permit decisions being reviewedthat were made by quasi-judicial bodies or permit agency officers whomade factual determinations in support of the decisions, after theconduct of proceedings in which the parties had an opportunityconsistent with due process to make records on the factual issues,board review of factual issues and the conclusions drawn from thefactual issues shall be confined to the records created by thequasi-judicial bodies or permit agency officers, except as provided insubsections (2) through (4) of this section. (2) For decisions described in subsection (1) of this section, therecords may be supplemented by additional evidence only if theadditional evidence relates to: (a) Grounds for disqualification of a member of the body or of theofficer that made the permit decision, when such grounds were unknownby the petitioner at the time the record was created; (b) Matters that were improperly excluded from the record afterbeing offered by a party to a permit decision proceeding; or (c) Matters that were outside the jurisdiction of the body orofficer that made the permit decision. (3) For permit decisions other than those described in subsection(1) of this section, the board review of the permit decision shall bede novo on issues presented as error in the petition. (4) The board may require or permit corrections of ministerialerrors or inadvertent omissions in the preparation of the record. (5)(a) The parties may not conduct pretrial discovery except withthe prior permission of the board, which may be sought by motion,subject to any applicable rules adopted by the board, at any time afterservice of the petition. The board shall not grant permission unlessthe party requesting it makes a prima facie showing of need. The board 9 shall strictly limit discovery to what is necessary for equitable andtimely review of the issues. (b) If the board allows the record to be supplemented, or in any denovo proceeding under subsection (3) of this section, the board shallrequire the parties to disclose before the hearing or trial on themerits the identity of witnesses and the specific evidence they intendto offer. (c) If any party, or anyone acting on behalf of any party, requestsrecords under chapter 42.17 RCW relating to the matters at issue, acopy of the request shall simultaneously be given to all other parties,and the board shall take such request into account in fashioning anequitable discovery order under this section.NEW SECTION.Sec. (1) The board shall review the decisionrecord and all such evidence as is permitted to supplement the recordfor review restricted to the decision record or is required for de novoreview under section 13 of this act. The board may grant relief onlyif the party seeking relief has carried the burden of establishing thatone of the standards set forth in (a) through (f) of this subsectionhas been met. The standards are: (a) The body or officer that made the permit decision engaged inunlawful procedure or failed to follow a prescribed process, unless theerror was harmless; (b) The permit decision is an erroneous interpretation of the law,after allowing for such deference as is due the construction of a lawby an agency with expertise; (c) The permit decision is not supported by evidence that issubstantial when viewed in light of the whole record before the board; (d) The permit decision is a clearly erroneous application of thelaw to the facts; (e) The permit decision is outside the authority or jurisdiction ofthe body or officer making the decision; or (f) The permit decision violates the constitutional rights of theparty seeking relief. (2) The board may affirm or reverse each and every permit decisionunder review or remand the decision for modification or furtherproceedings involving the permit agencies. 10 NEW SECTION.Sec. (1) In order to obtain judicial review ofa final decision of the environmental and land use hearings board, aparty to the board case as consolidated shall timely file a petitionfor judicial review in the superior court for Thurston county andtimely serve the board and all parties to the proceedings before theboard by personal service or by mail. Such petition is timely filedand served only if it is filed and served on all parties within thirtydays after the filing of the final decision and order of the board.Service by mail shall be deemed effective on the date of deposit withthe United States postal service. Any party may apply for directreview by the court of appeals. An application for direct review mustbe filed with the superior court within ten days after the filing ofthe petition for judicial review. In considering an application fordirect review under this chapter, it shall be presumed that: (a) Thequalifying project presents fundamental and urgent issues affecting thepublic interest which require a prompt determination, and (b) delay inobtaining a final and prompt determination of such issues would bedetrimental to a party and the public interest. (2) The presumption set forth in subsection (1) of this sectionshall require that the superior court certify the direct review notless than ten days, and not more than fifteen days, after the filing ofthe application therefore, unless, upon motion of a party withsupporting excerpts from the record within ten days after the filing ofsuch application, the superior court finds that: (a) The project isnot a qualifying project, or (b) the project will not in fact providenew employment within the county in which the project is located. Thecourt may make such findings upon a showing that said record containsclear, cogent, and convincing evidence to support such findings, whichevidence has been testified to by at least one witness competent totestify on employment matters. (3) A motion as set forth in subsection (2) of this section shallbe heard within fourteen days after the filing of the motion and shallbe confined to certified excerpts from the record, which any party mayproduce. It shall not be necessary to certify the entire record to thecourt for the purpose of hearing such motion. (4) The court of appeals shall accept direct review of a caseunless it finds that the superior court's certification under the 11 standards contained in this section was clearly erroneous. Review bythe court of appeals shall be restricted to the decision record of thepermit agency and the board proceedings. All certified appeals shallbe provided priority processing by the court of appeals.Sec. RCW 34.05.518 and 1995 c 382 s 5 are each amended to readas follows: (1) The final decision of an administrative agency in anadjudicative proceeding under this chapter may, except as otherwiseprovided in chapter 43. RCW (sections 1 through 15 of this act), bedirectly reviewed by the court of appeals either (a) upon certificationby the superior court pursuant to this section or (b) if the finaldecision is from an environmental board as defined in subsection (3) ofthis section, upon acceptance by the court of appeals after acertificate of appealability has been filed by the environmental boardthat rendered the final decision. (2) For direct review upon certification by the superior court, anapplication for direct review must be filed with the superior courtwithin thirty days of the filing of the petition for review in superiorcourt. The superior court may certify a case for direct review only ifthe judicial review is limited to the record of the agency proceedingand the court finds that: (a) Fundamental and urgent issues affecting the futureadministrative process or the public interest are involved whichrequire a prompt determination; (b) Delay in obtaining a final and prompt determination of suchissues would be detrimental to any party or the public interest; (c) An appeal to the court of appeals would be likely regardless ofthe determination in superior court; and (d) The appellate court's determination in the proceeding wouldhave significant precedential value. Procedures for certification shall be established by court rule. (3)(a) For the purposes of direct review of final decisions ofenvironmental boards, environmental boards include those boardsidentified in RCW 43.21B.005 and growth management hearings boards asidentified in RCW 36.70A.250. 12 (b) An environmental board may issue a certificate of appealabilityif it finds that delay in obtaining a final and prompt determination ofthe issues would be detrimental to any party or the public interest andeither: (i) Fundamental and urgent statewide or regional issues are raised;or (ii) The proceeding is likely to have significant precedentialvalue. (4) The environmental board shall state in the certificate ofappealability which criteria it applied, explain how that criteria wasmet, and file with the certificate a copy of the final decision. (5) For an appellate court to accept direct review of a finaldecision of an environmental board, it shall consider the same criteriaoutlined in subsection (3) of this section, except as otherwiseprovided in chapter 43. RCW (sections 1 through 15 of this act). (6) The procedures for direct review of final decisions ofenvironmental boards include: (a) Within thirty days after filing the petition for review withthe superior court, a party may file an application for direct reviewwith the superior court and serve the appropriate environmental boardand all parties of record. The application shall request theenvironmental board to file a certificate of appealability. (b) If an issue on review is the jurisdiction of the environmentalboard, the board may file an application for direct review on thatissue. (c) The environmental board shall have thirty days to grant or denythe request for a certificate of appealability and its decision shallbe filed with the superior court and served on all parties of record. (d) If a certificate of appealability is issued, the parties shallhave fifteen days from the date of service to file a notice ofdiscretionary review in the superior court, and the notice shallinclude a copy of the certificate of appealability and a copy of thefinal decision. (e) If the appellate court accepts review, the certificate ofappealability shall be transmitted to the court of appeals as part ofthe certified record. 13 (f) If a certificate of appealability is denied, review shall be bythe superior court. The superior court's decision may be appealed tothe court of appeals.Sec. RCW 36.70C.030 and 1995 c 347 s 704 are each amended toread as follows: (1) This chapter replaces the writ of certiorari for appeal of landuse decisions and shall be the exclusive means of judicial review ofland use decisions, except that this chapter does not apply to: (a) Judicial review of: (i) Land use decisions made by bodies that are not part of a localjurisdiction; (ii) Land use decisions of a local jurisdiction that are subject toreview by a quasijudicial body created by state law, such as theshorelines hearings board, the environmental and land use hearingsboard, or the growth management hearings board; (b) Judicial review of applications for a writ of mandamus orprohibition; or (c) Claims provided by any law for monetary damages orcompensation. If one or more claims for damages or compensation areset forth in the same complaint with a land use petition brought underthis chapter, the claims are not subject to the procedures andstandards, including deadlines, provided in this chapter for review ofthe petition. The judge who hears the land use petition may, ifappropriate, preside at a trial for damages or compensation. (2) The superior court civil rules govern procedural matters underthis chapter to the extent that the rules are consistent with thischapter.Sec. RCW 43.21B.005 and 1999 c 125 s 1 are each amended toread as follows: (1) There is created an environmental hearings office of the stateof Washington. The environmental hearings office shall consist of thepollution control hearings board created in RCW 43.21B.010, the forestpractices appeals board created in RCW 76.09.210, the shorelineshearings board created in RCW 90.58.170, the environmental and land usehearings board created in chapter 43. RCW (sections 1 through 15 of 14 this act), and the hydraulic appeals board created in RCW ((75.20.130))77.55.170. The chairman of the pollution control hearings board shallbe the chief executive officer of the environmental hearings office.Membership, powers, functions, and duties of the pollution controlhearings board, the forest practices appeals board, the shorelineshearings board, and the hydraulic appeals board shall be as provided bylaw. (2) The chief executive officer of the environmental hearingsoffice may appoint an administrative appeals judge who shall possessthe powers and duties conferred by the administrative procedure act,chapter 34.05 RCW, in cases before the boards comprising the office.The administrative appeals judge shall have a demonstrated knowledge ofenvironmental law, and shall be admitted to the practice of law in thestate of Washington. Additional administrative appeals judges may alsobe appointed by the chief executive officer on the same terms.Administrative appeals judges shall not be subject to chapter 41.06RCW. (3) The administrative appeals judges appointed under subsection(2) of this section are subject to discipline and termination, forcause, by the chief executive officer. Upon written request by theperson so disciplined or terminated, the chief executive officer shallstate the reasons for such action in writing. The person affected hasa right of review by the superior court of Thurston county on petitionfor reinstatement or other remedy filed within thirty days of receiptof such written reasons. (4) The chief executive officer may appoint, discharge, and fix thecompensation of such administrative or clerical staff as may benecessary. (5) The chief executive officer may also contract for requiredservices.Sec. RCW 43.21B.110 and 2001 c 220 s 2 are each amended toread as follows: (1) The hearings board shall only have jurisdiction to hear anddecide appeals from the following decisions of the department, thedirector, local conservation districts, and the air pollution control 15 boards or authorities as established pursuant to chapter 70.94 RCW, orlocal health departments: (a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,70.105.080, 70.107.050, 88.46.090, 90.03.600, 90.48.144, 90.56.310, and90.56.330. (b) Orders issued pursuant to RCW 18.104.043, 18.104.060,43.27A.190, 70.94.211, 70.94.332, 70.105.095, 86.16.020, 88.46.070,90.14.130, 90.48.120, and 90.56.330. (c) Except as provided in RCW 90.03.210(2), the issuance,modification, or termination of any permit, certificate, or license bythe department or any air authority in the exercise of itsjurisdiction, including the issuance or termination of a waste disposalpermit, the denial of an application for a waste disposal permit, themodification of the conditions or the terms of a waste disposal permit,or a decision to approve or deny an application for a solid wastepermit exemption under RCW 70.95.300. (d) Decisions of local health departments regarding the grant ordenial of solid waste permits pursuant to chapter 70.95 RCW. (e) Decisions of local health departments regarding the issuanceand enforcement of permits to use or dispose of biosolids under RCW70.95J.080. (f) Decisions of the department regarding wastederived fertilizeror micronutrient fertilizer under RCW 15.54.820, and decisions of thedepartment regarding wastederived soil amendments under RCW 70.95.205. (g) Decisions of local conservation districts related to the denialof approval or denial of certification of a dairy nutrient managementplan; conditions contained in a plan; application of any dairy nutrientmanagement practices, standards, methods, and technologies to aparticular dairy farm; and failure to adhere to the plan review andapproval timelines in RCW 90.64.026. (h) Any other decision by the department or an air authority whichpursuant to law must be decided as an adjudicative proceeding underchapter 34.05 RCW. (2) The following hearings shall not be conducted by the hearingsboard: (a) Hearings required by law to be conducted by the shorelineshearings board pursuant to chapter 90.58 RCW. 16 (b) Hearings conducted by the department pursuant to RCW 70.94.332,70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180. (c) Proceedings conducted by the department, or the department'sdesignee, under RCW 90.03.160 through 90.03.210 or 90.44.220. (d) Hearings conducted by the department to adopt, modify, orrepeal rules. (e) Appeals of decisions by the department as provided in chapter43. RCW (sections 1 through 15 of this act). (3) Review of rules and regulations adopted by the hearings boardshall be subject to review in accordance with the provisions of theAdministrative Procedure Act, chapter 34.05 RCW.Sec. RCW 76.09.220 and 1999 sp.s. c 4 s 902 are each amendedto read as follows: (1) The appeals board shall operate on either a parttime or afulltime basis, as determined by the governor. If it is determinedthat the appeals board shall operate on a fulltime basis, each membershall receive an annual salary to be determined by the governor. If itis determined that the appeals board shall operate on a parttimebasis, each member shall be compensated in accordance with RCW43.03.250. The director of the environmental hearings office shallmake the determination, required under RCW 43.03.250, as to whatstatutorily prescribed duties, in addition to attendance at a hearingor meeting of the board, shall merit compensation. This compensationshall not exceed ten thousand dollars in a fiscal year. Each membershall receive reimbursement for travel expenses incurred in thedischarge of his or her duties in accordance with the provisions of RCW43.03.050 and 43.03.060. (2) The appeals board shall as soon as practicable after theinitial appointment of the members thereof, meet and elect from amongits members a chair, and shall at least biennially thereafter meet andelect or reelect a chair. (3) The principal office of the appeals board shall be at the statecapital, but it may sit or hold hearings at any other place in thestate. A majority of the appeals board shall constitute a quorum formaking orders or decisions, adopting rules necessary for the conduct ofits powers and duties, or transacting other official business, and may 17 act though one position on the board be vacant. One or more membersmay hold hearings and take testimony to be reported for action by theboard when authorized by rule or order of the board. The appeals boardshall perform all the powers and duties granted to it in this chapteror as otherwise provided by law. (4) The appeals board shall make findings of fact and prepare awritten decision in each case decided by it, and such findings anddecision shall be effective upon being signed by two or more membersand upon being filed at the appeals board's principal office, and shallbe open to public inspection at all reasonable times. (5) The appeals board shall either publish at its expense or makearrangements with a publishing firm for the publication of those of itsfindings and decisions which are of general public interest, in suchform as to assure reasonable distribution thereof. (6) The appeals board shall maintain at its principal office ajournal which shall contain all official actions of the appeals board,with the exception of findings and decisions, together with the vote ofeach member on such actions. The journal shall be available for publicinspection at the principal office of the appeals board at allreasonable times. (7) The forest practices appeals board shall have exclusivejurisdiction to hear appeals arising from an action or determination bythe department, and the department of fish and wildlife, and thedepartment of ecology with respect to management plans provided forunder RCW 76.09.350. (8)(a) Any person aggrieved by the approval or disapproval of anapplication to conduct a forest practice or the approval or disapprovalof any landscape plan or permit or watershed analysis may, except asotherwise provided in chapter 43. RCW (sections 1 through 15 of thisact), seek review from the appeals board by filing a request for thesame within thirty days of the approval or disapproval. Concurrentlywith the filing of any request for review with the board as provided inthis section, the requestor shall file a copy of his or her requestwith the department and the attorney general. The attorney general mayintervene to protect the public interest and ensure that the provisionsof this chapter are complied with. 18 (b) The review proceedings authorized in (a) of this subsection aresubject to the provisions of chapter 34.05 RCW pertaining to proceduresin adjudicative proceedings.Sec. RCW 77.55.170 and 2000 c 107 s 20 are each amended toread as follows: (1) There is hereby created within the environmental hearingsoffice under RCW 43.21B.005 the hydraulic appeals board of the state ofWashington. (2) The hydraulic appeals board shall consist of three members:The director of the department of ecology or the director's designee,the director of the department of agriculture or the director'sdesignee, and the director or the director's designee of the departmentwhose action is appealed under subsection (6) of this section. Adecision must be agreed to by at least two members of the board to befinal. (3) The board may adopt rules necessary for the conduct of itspowers and duties or for transacting other official business. (4) The board shall make findings of fact and prepare a writtendecision in each case decided by it, and that finding and decisionshall be effective upon being signed by two or more board members andupon being filed at the hydraulic appeals board's principal office, andshall be open to public inspection at all reasonable times. (5) The board has exclusive jurisdiction to hear appeals arisingfrom the approval, denial, conditioning, or modification of a hydraulicapproval issued by the department: (a) Under the authority granted inRCW 77.55.110 for the diversion of water for agricultural irrigation orstock watering purposes or when associated with streambankstabilization to protect farm and agricultural land as defined in RCW84.34.020; or (b) under the authority granted in RCW 77.55.230 for offsite mitigation proposals. (6)(a) Any person aggrieved by the approval, denial, conditioning,or modification of a hydraulic approval pursuant to RCW 77.55.110 may,except as otherwise provided in chapter 43. RCW (sections 1 through15 of this act), seek review from the board by filing a request for thesame within thirty days of notice of the approval, denial,conditioning, or modification of such approval. 19 (b) The review proceedings authorized in (a) of this subsection aresubject to the provisions of chapter 34.05 RCW pertaining to proceduresin adjudicative proceedings.Sec. RCW 90.58.180 and 1997 c 199 s 1 are each amended to readas follows: (1) Any person aggrieved by the granting, denying, or rescinding ofa permit on shorelines of the state pursuant to RCW 90.58.140 may,except as otherwise provided in chapter 43. RCW (sections 1 through15 of this act), seek review from the shorelines hearings board byfiling a petition for review within twentyone days of the date offiling as defined in RCW 90.58.140(6). Within seven days of the filing of any petition for review with theboard as provided in this section pertaining to a final decision of alocal government, the petitioner shall serve copies of the petition onthe department, the office of the attorney general, and the localgovernment. The department and the attorney general may intervene toprotect the public interest and insure that the provisions of thischapter are complied with at any time within fifteen days from the dateof the receipt by the department or the attorney general of a copy ofthe petition for review filed pursuant to this section. The shorelineshearings board shall schedule review proceedings on the petition forreview without regard as to whether the period for the department orthe attorney general to intervene has or has not expired. (2) The department or the attorney general may obtain review of anyfinal decision granting a permit, or granting or denying an applicationfor a permit issued by a local government by filing a written petitionwith the shorelines hearings board and the appropriate local governmentwithin twentyone days from the date the final decision was filed asprovided in RCW 90.58.140(6). (3) The review proceedings authorized in subsections (1) and (2) ofthis section are subject to the provisions of chapter 34.05 RCWpertaining to procedures in adjudicative proceedings. Judicial reviewof such proceedings of the shorelines hearings board is governed bychapter 34.05 RCW. The board shall issue its decision on the appealauthorized under subsections (1) and (2) of this section within onehundred eighty days after the date the petition is filed with the board 20 or a petition to intervene is filed by the department or the attorneygeneral, whichever is later. The time period may be extended by theboard for a period of thirty days upon a showing of good cause or maybe waived by the parties. (4) Any person may appeal any rules, regulations, or guidelinesadopted or approved by the department within thirty days of the date ofthe adoption or approval. The board shall make a final decision withinsixty days following the hearing held thereon. (5) The board shall find the rule, regulation, or guideline to bevalid and enter a final decision to that effect unless it determinesthat the rule, regulation, or guideline: (a) Is clearly erroneous in light of the policy of this chapter; or (b) Constitutes an implementation of this chapter in violation ofconstitutional or statutory provisions; or (c) Is arbitrary and capricious; or (d) Was developed without fully considering and evaluating allmaterial submitted to the department during public review and comment;or (e) Was not adopted in accordance with required procedures. (6) If the board makes a determination under subsection (5)(a)through (e) of this section, it shall enter a final decision declaringthe rule, regulation, or guideline invalid, remanding the rule,regulation, or guideline to the department with a statement of thereasons in support of the determination, and directing the departmentto adopt, after a thorough consultation with the affected localgovernment and any other interested party, a new rule, regulation, orguideline consistent with the board's decision. (7) A decision of the board on the validity of a rule, regulation,or guideline shall be subject to review in superior court, ifauthorized pursuant to chapter 34.05 RCW. A petition for review of thedecision of the shorelines hearings board on a rule, regulation, orguideline shall be filed within thirty days after the date of finaldecision by the shorelines hearings board.NEW SECTION.Sec. Sections 1 through 15 of this actconstitute a new chapter in Title 43 RCW. 21 NEW SECTION.Sec. The legislature does not intend toappropriate additional funds for the implementation of this act andexpects all affected state agencies to implement this act's provisionswithin existing appropriations.NEW SECTION.Sec. This act is necessary for the immediatepreservation of the public peace, health, or safety, or support of thestate government and its existing public institutions, and takes effectimmediately. Correct the title.Clarifies that references to "board" are referring to theEnvironmental and Land Use Hearings Board (ELUHB); exempts water andsewer availability certifications and Energy Facility Site EvaluationCouncil certifications from the bill; requires the permit applicant,within 30 days of filing the first permit application, to request OPAto designate the project as a "qualifying project"; requires thedesignation request to include a list of permits that the projectapplicant reasonably believes will be required for the project;requires OPA to make a decision within 30 days and, if it grants therequest, provide copies of its decision to each permitting agency;requires OPA to provide notice of its decision to the code reviser andto any parties that have requested notification; clarifies that the"qualifying project" designation does not create an independent causeof action; requires "qualifying project" permits to include a sentencestating that any appeal must be according to the ELUHB process;clarifies that permits that have already been appealed to a hearingsboard cannot be appealed to the ELUHB; clarifies that discovery must besubject to rules adopted by the ELUHB; states that affected agenciesare expected to implement the bill within existing appropriations; andprohibits permit applicants from applying to use this process afterDecember 31, 2010.--- END --- 22