Passed by the House February 13, 2012 Yeas 88   FRANK CHOPP ________________________________________ Speaker of the House of Representatives Passed by the Senate March 1, 2012 Yeas 42   BRAD OWEN ________________________________________ President of the Senate | I, Barbara Baker, Chief Clerk of the House of Representatives of the State of Washington, do hereby certify that the attached is ENGROSSED SECOND SUBSTITUTE HOUSE BILL 2238 as passed by the House of Representatives and the Senate on the dates hereon set forth. BARBARA BAKER ________________________________________ Chief Clerk | |
Approved March 23, 2012, 11:15 a.m. CHRISTINE GREGOIRE ________________________________________ Governor of the State of Washington | March 23, 2012 Secretary of State State of Washington |
State of Washington | 62nd Legislature | 2012 Regular Session |
READ FIRST TIME 02/06/12.
AN ACT Relating to pairing required investments in compensatory environmental mitigation, including the mitigation of transportation projects, with existing programs currently referenced in Title 76 RCW that enhance natural environmental functions; amending RCW 47.01.300, 90.74.005, 90.74.010, 90.74.020, and 90.74.030; adding a new section to chapter 90.74 RCW; adding a new section to chapter 76.09 RCW; creating a new section; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 47.01.300 and 1994 c 258 s 4 are each amended to read
as follows:
The department shall, in cooperation with environmental regulatory
authorities:
(1) Identify and document environmental resources in the
development of the statewide multimodal plan under RCW 47.06.040;
(2) Allow for public comment regarding changes to the criteria used
for prioritizing projects under chapter 47.05 RCW before final adoption
of the changes by the commission;
(3) Use an environmental review as part of the project prospectus
identifying potential environmental impacts, mitigation, theutilization of the mitigation option available in section 5 of this
act, and costs during the early project identification and selection
phase, submit the prospectus to the relevant environmental regulatory
authorities, and maintain a record of comments and proposed revisions
received from the authorities;
(4) Actively work with the relevant environmental regulatory
authorities during the design alternative analysis process and seek
written concurrence from the authorities that they agree with the
preferred design alternative selected;
(5) Develop a uniform methodology, in consultation with relevant
environmental regulatory authorities, for submitting plans and
specifications detailing project elements that impact environmental
resources, and proposed mitigation measures including the mitigation
option available in section 5 of this act, to the relevant
environmental regulatory authorities during the preliminary
specifications and engineering phase of project development;
(6) Screen construction projects to determine which projects will
require complex or multiple permits. The permitting authorities shall
develop methods for initiating review of the permit applications for
the projects before the final design of the projects;
(7) Conduct special prebid meetings for those projects that are
environmentally complex; and
(8) Review environmental considerations related to particular
projects during the preconstruction meeting held with the contractor
who is awarded the bid.
Sec. 2 RCW 90.74.005 and 1997 c 424 s 1 are each amended to read
as follows:
(1) The legislature finds that:
(a) The state lacks a clear policy relating to the mitigation of
wetlands and aquatic habitat for infrastructure development;
(b) Regulatory agencies have generally required project proponents
to use compensatory mitigation only at the site of the project's
impacts and to mitigate narrowly for the habitat or biological
functions impacted by a project;
(c) This practice of considering traditional on-site, in-kind
mitigation may provide fewer environmental benefits when compared to
innovative mitigation proposals that provide benefits in advance of a
project's planned impacts and that restore functions or habitat other
than those impacted at a project site; ((and))
(d) Regulatory decisions on development proposals that attempt to
incorporate innovative mitigation measures take an unreasonably long
period of time and are subject to a great deal of uncertainty and
additional expenses; and
(e) Greater environmental benefits may be achievable through
compensatory environmental mitigation when the collective mitigation
investments of project proponents is paired with the structure of
successful state programs that are referenced in statute and are
designed to enhance and preserve aquatic and riparian functions when
there is a clear linkage between the environmental impacts and the
goals of the state program. Programs such as the forestry riparian
easement program, the family forest fish passage program, and the
riparian open space program created pursuant to RCW 76.09.040 may have
a logical and physical nexus with many underlying projects, especially
road projects, and are proven to create a sustained benefit in the
aquatic environment.
(2) The legislature therefore declares that it is the policy of the
state to authorize innovative mitigation measures by requiring state
regulatory agencies to consider mitigation proposals for
((infrastructure)) projects that are timed, designed, and located in a
manner to provide equal or better biological functions and values
compared to traditional on-site, in-kind mitigation proposals.
(3) It is the intent of the legislature to authorize local
governments to accommodate the goals of this chapter. It is not the
intent of the legislature to: (a) Restrict the ability of a project
proponent to pursue project specific mitigation; or (b) create any new
authority for regulating wetlands or aquatic habitat beyond what is
specifically provided for in this chapter.
Sec. 3 RCW 90.74.010 and 1997 c 424 s 2 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Mitigation" means sequentially avoiding impacts, minimizing
impacts, or compensating for remaining unavoidable impacts.
(2) "Compensatory mitigation" means the restoration, creation,
enhancement, or preservation of uplands, wetlands, or other aquatic
resources for the purposes of compensating for unavoidable adverse
impacts that remain after all appropriate and practicable avoidance and
minimization has been achieved. "Compensatory mitigation" includes
mitigation that:
(a) Occurs at the same time as, or in advance of, a project's
planned environmental impacts;
(b) Is located in a site either on, near, or distant from the
project's impacts; and
(c) Provides either the same or different biological functions and
values as the functions and values impacted by the project.
(3) "Infrastructure development" means an action that is critical
for the maintenance or expansion of an existing infrastructure feature
such as a highway, rail line, airport, marine terminal, utility
corridor, harbor area, or hydroelectric facility and is consistent with
an approved land use planning process. This planning process may
include the growth management act, chapter 36.70A RCW, or the shoreline
management act, chapter 90.58 RCW, in areas covered by those chapters.
(4) "Mitigation plan" means a document or set of documents
developed through joint discussions between a project proponent and
environmental regulatory agencies that describe the unavoidable wetland
or aquatic resource impacts of ((the)) a proposed infrastructure
development or noninfrastructure development and the proposed
compensatory mitigation for those impacts.
(5) "Project proponent" means a public or private entity
responsible for preparing a mitigation plan.
(6) "Watershed" means an area identified as a state of Washington
water resource inventory area under WAC 173-500-040 as it exists on
((July 27, 1997)) the effective date of this section.
(7) "Family forest fish passage program" means the program
administered by the recreation and conservation office created pursuant
to RCW 76.09.410 that provides public cost assistance to small forest
landowners associated with the road maintenance and abandonment
processes.
(8) "Forestry riparian easement program" means the program
established in RCW 76.13.120.
(9) "Noninfrastructure development" means a development project
that requires the completion of compensatory mitigation that does not
meet the definition of "infrastructure development" and is consistent
with an approved land use planning process. This planning process may
include the growth management act, chapter 36.70A RCW, or the shoreline
management act, chapter 90.58 RCW, in areas covered by those chapters.
(10) "Riparian open space program" means the program created
pursuant to RCW 76.09.040.
Sec. 4 RCW 90.74.020 and 1997 c 424 s 3 are each amended to read
as follows:
(1) Project proponents may use a mitigation plan to propose
compensatory mitigation within a watershed. A mitigation plan shall:
(a) Contain provisions that guarantee the long-term viability of
the created, restored, enhanced, or preserved habitat, including
assurances for protecting any essential biological functions and values
defined in the mitigation plan;
(b) Contain provisions for long-term monitoring of any created,
restored, or enhanced mitigation site; and
(c) Be consistent with the local comprehensive land use plan and
any other applicable planning process in effect for the development
area, such as an adopted subbasin or watershed plan.
(2)(a) The departments of ecology and fish and wildlife may not
limit the scope of options in a mitigation plan to areas on or near the
project site, or to habitat types of the same type as contained on the
project site. The departments of ecology and fish and wildlife shall
fully review and give due consideration to compensatory mitigation
proposals that improve the overall biological functions and values of
the watershed or bay and accommodate the mitigation needs of the
infrastructure development or noninfrastructure development, including
proposals or portions of proposals that are explored or developed in
section 5 of this act.
(b) The departments of ecology and fish and wildlife are not
required to grant approval to a mitigation plan that the departments
find does not provide equal or better biological functions and values
within the watershed or bay.
(3) When making a permit or other regulatory decision under the
guidance of this chapter, the departments of ecology and fish and
wildlife shall consider whether the mitigation plan provides equal or
better biological functions and values, compared to the existing
conditions, for the target resources or species identified in the
mitigation plan. This consideration shall be based upon the following
factors:
(a) The relative value of the mitigation for the target resources,
in terms of the quality and quantity of biological functions and values
provided;
(b) The compatibility of the proposal with the intent of broader
resource management and habitat management objectives and plans, such
as existing resource management plans, watershed plans, critical areas
ordinances, the forestry riparian easement program, the riparian open
space program, the family forest fish passage program, and shoreline
master programs;
(c) The ability of the mitigation to address scarce functions or
values within a watershed;
(d) The benefits of the proposal to broader watershed landscape,
including the benefits of connecting various habitat units or providing
population-limiting habitats or functions for target species;
(e) The benefits of early implementation of habitat mitigation for
projects that provide compensatory mitigation in advance of the
project's planned impacts; and
(f) The significance of any negative impacts to nontarget species
or resources.
(4) A mitigation plan may be approved through a memorandum of
agreement between the project proponent and either the department of
ecology or the department of fish and wildlife, or both.
NEW SECTION. Sec. 5 A new section is added to chapter 90.74 RCW
to read as follows:
(1)(a) To the degree that resources are deemed available by the
affected departments, the department of ecology and the department of
fish and wildlife shall allow, when appropriate, programs that are
related to environmental mitigation, or explore the potential of
developing new programs, to utilize the forestry riparian easement
program, the riparian open space program, or the family forest fish
passage program to mitigate for environmental impacts from projects
conducted in the state where compatible with existing regulations. The
use of these programs may not be additive to existing compensatory
mitigation requirements.
(b) In implementing this subsection, the department of natural
resources may be used as a resource, consistent with section 8 of this
act, to assist in identifying potential projects that can be used for
the mitigation of infrastructure and noninfrastructure development.
(2) The department of ecology and the department of fish and
wildlife are authorized to seek federal or private funds and in-kind
contributions to implement this section. The scope of effort in
implementing this section may be defined by the success of the
department of ecology and the department of fish and wildlife in
securing specific funding.
NEW SECTION. Sec. 6 (1) The department of ecology and the
department of fish and wildlife must provide a report to the
legislature, consistent with RCW 43.01.036, by December 31, 2012, on:
(a) Any successes in using existing programs to mitigate impacts
for infrastructure and noninfrastructure development, as those terms
are defined in RCW 90.74.010, as provided in section 5 of this act; and
(b) Any constraints discovered that limits the applicability of
section 5 of this act.
(2) The department of ecology and the department of fish and
wildlife must provide a report to the legislature, consistent with RCW
43.01.036, by December 31, 2013, on:
(a) The identification of any additional programs that may be
appropriate for inclusion in an environmental mitigation plan;
(b) The feasibility of developing new programs that may be
appropriate for inclusion in an environmental mitigation plan,
including the identification of:
(i) How often a program would be suitable for inclusion;
(ii) When and where a new program would be suitable for inclusion;
(iii) Constraints on the suitability of any new program; and
(iv) Timelines, implementation costs, agency resource needs, and
requests for new legal authority.
(3) The report required in subsection (2) of this section should,
if deemed appropriate and funding allows, be developed in consultation
with the department of transportation, the department of natural
resources, the department of commerce, affected federally recognized
Indian tribes, and private sector stakeholders such as forest
landowners, environmental interests, and the development community.
(4) The authority provided in section 5(2) of this act relating to
the acceptance of nonstate money may be utilized to fund the
implementation of this section. The scope of effort in implementing
this section may be defined by the success of the department of ecology
and the department of fish and wildlife in securing specific funding.
(5) This section expires July 30, 2014.
Sec. 7 RCW 90.74.030 and 1997 c 424 s 4 are each amended to read
as follows:
(1) In making regulatory decisions relating to wetland or aquatic
resource mitigation, the departments of ecology and fish and wildlife
shall, at the request of the project proponent, follow the guidance of
((RCW 90.74.005 through 90.74.020)) this chapter.
(2) If the department of ecology or the department of fish and
wildlife receives multiple requests for review of mitigation plans,
each department may schedule its review of these proposals to conform
to available budgetary resources.
NEW SECTION. Sec. 8 A new section is added to chapter 76.09 RCW
to read as follows:
The department and, when appropriate, the small forest landowner
office established in RCW 76.13.110 must assist in identifying
potential projects that can be used for the mitigation of
infrastructure and noninfrastructure development, as those terms are
defined in RCW 90.74.010, as provided in section 5 of this act.