BILL REQ. #:  H-3992.3 

READ FIRST TIME 02/11/14.   

     AN ACT Relating to Washington state department of transportation projects; amending RCW 47.01.300; adding a new section to chapter 90.58 RCW; adding a new section to chapter 43.21C RCW; adding a new section to chapter 47.01 RCW; adding a new chapter to Title 47 RCW; and creating a new section.

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

NEW SECTION.  Sec. 1   It is the intent of the legislature to achieve transportation regulatory reform that expedites the delivery of transportation projects through a streamlined approach to environmental decision making. The department of transportation should work cooperatively and proactively with state regulatory and natural resource agencies, public and private sector interests, and Indian tribes to avoid project delays. The department and state regulatory and natural resource agencies should continue to implement and improve upon the successful policies, guidance, tools, and procedures that were created as a result of transportation permit efficiency and accountability committee efforts. The department should expedite project delivery and routine maintenance activities through the use of programmatic agreements and permits where possible and seek new opportunities to eliminate duplicative processes.

NEW SECTION.  Sec. 2   The department must use the following expedited environmental review and approval process for any transportation project requiring the preparation of an environmental impact statement under the national environmental policy act (42 U.S.C. Sec. 4321 et seq.). State and local agencies with relevant jurisdiction, to the extent practicable and appropriate, as determined by the agencies, must provide technical assistance to the department on accomplishing the project review and coordination activities described in this section.
     (1) Step 1: Public and agency involvement in defining the project purpose and scope of environmental review. The department must provide notice to the public that environmental review for the project is being initiated. This notice must reference the notice of intent under the national environmental policy act and explain that this replaces the need for a threshold determination under chapter 43.21C RCW. The department must invite the public, agencies, and tribes to provide input on the project purpose and scope of environmental review. The department must provide a thirty-day comment period. The department may hold one or more meetings to collect input. The department must complete step 1 by: (a) Providing a summary of the results of step 1, including a statement that the department considers step 1 to be complete; and (b) making the summary available to the public. The department must consider the input from the public, agencies, and tribes before finalizing the project purpose and scope of environmental review.
     (2) Step 2: Identify participating agencies and convene meetings with an interdisciplinary team.
     (a) The department must identify any federal, state, tribal, regional, and local governmental agencies that may have an interest in the project. The department must invite these agencies to serve as participating agencies. The roles and responsibilities of participating agencies include, but are not limited to, identifying potential environmental or socioeconomic impacts that could substantially delay or prevent an agency from granting a permit or other approval that is needed for the project. Participating agencies must provide input to the department as the department develops: The scope of environmental analysis, a purpose and need statement, a range of alternatives, methodologies, and the level of detail for the analysis of alternatives. Designation as a participating agency does not indicate project support, but it does give invited agencies opportunities to provide input at key decision points in the process.
     (b) The department must form an interdisciplinary team composed of participating agency staff and key technical specialists from the department. Participating agencies must identify key technical or regulatory experts to participate on the project interdisciplinary team. The department must convene at least one meeting with the interdisciplinary team at each of the subsequent steps in order to collaborate on project decisions and milestones.
     (3) Step 3: Participating agency involvement during the screening of alternatives.
     (a) The department must initiate step 3 by providing notice to participating agencies that the screening of project alternatives has begun. Within thirty days of receiving notification, participating state, county, and city agencies must, and federal agencies are encouraged to, identify:
     (i) For each identified alternative: (A) The specific features that the agency considers significant with respect to the agency's role in environmental reviews, permits, or other approvals for the project; (B) the reasons these features are significant; and (C) any concerns the agency may have about the alternative because of potential significant adverse impacts of these features on resources or social policies within the agency's jurisdiction;
     (ii) For each feature for which the agency raises concerns: (A) Recommendations on how the potential adverse impacts could be avoided, minimized, and mitigated; and (B) an assessment of the relative ranking of each alternative with respect to whether and to what extent these concerns apply; and
     (iii) Other information the participating agency requests the department to consider in deciding whether, when, where, or how to proceed with the project.
     (b) The department must consider the input from the participating agencies prior to selecting a preferred project alternative.
     (4) Step 4: Participating agency involvement during the identification of environmental permits and approvals, application procedures, and decision standards.
     (a) The department, in consultation with the participating agencies, must identify all permits and other approvals the agencies might require for each project alternative.
     (b) After consulting with all participating agencies, the department must complete step 4 by compiling a list of all environmental permits and approvals it believes are needed for the project under each alternative being considered.
     (5) Step 5: Complete an environmental analysis and issue a draft environmental impact statement. The department must initiate step 5 by providing notice of the availability of the draft environmental impact statement to participating agencies, tribal governments, and the public. Notification must include posting on the state environmental policy act register. State, county, and city agencies must, and federal agencies are encouraged to, provide written comments on the draft environmental impact statement no later than forty-five days after the department posts notice in the state environmental policy act register.
     (6) Step 6: Develop a final environmental impact statement. The department must work with the federal lead agency to consider and respond to all substantive comments received during the comment period. The department must evaluate public and agency comments on the draft environmental impact statement to determine if the statement sufficiently identifies and analyzes the impacts and mitigation of the proposed action. The department must engage participating agencies in refining alternatives and completing the environmental review.
     (7) Step 7: Issue a final environmental impact statement. The final environmental impact statement must contain: The department's final recommendation and preferred alternative, a summary of the comments received on the draft environmental impact statement and the response, and a description of the procedures required to ensure that mitigation measures are implemented. The department must provide notice of the final environmental impact statement and the federal lead agency's record of decision in the state environmental policy act register.

NEW SECTION.  Sec. 3   (1) The legislature recognizes the value that tribal governments provide in the review of transportation projects. The legislature expects the department to continue its efforts to provide consistent consultation and communication during the environmental review of proposed transportation projects.
     (2) For projects described in section 2 of this act, the department must invite affected tribes to be participating agencies. If tribal governments elect not to participate, the department must make a reasonable effort to: Meet with representatives of affected tribes to review broad issues during scoping, engage in both formal and technical consultation with tribal staff, and seek to resolve issues in parallel with project planning and permitting activities.

NEW SECTION.  Sec. 4   The department must streamline the permitting process by developing and maintaining positive relationships with the regulatory agencies and the Indian tribes. The department can reduce the time it takes to obtain permits by incorporating impact avoidance and minimization measures into project design and by developing complete permit applications. To streamline the permitting process, the department must:
     (1) Continue a multiagency permit program consisting of appropriate regulatory agency staff with oversight and management from the department.
     (a) The multiagency permit program must provide early project coordination, expedited project review, project status updates, technical and regulatory guidance, and construction support to ensure compliance.
     (b) The multiagency permit program staff must assist department project teams with developing complete permit applications, provide suggestions for how the project can avoid and minimize impacts, and provide input regarding mitigation for unavoidable impacts;     
     (2) Establish, implement, and maintain programmatic agreements and permits with federal and state agencies to expedite the process of ensuring compliance with the endangered species act, section 106 of the national historic preservation act, hydraulic project approvals, the clean water act, and other federal acts as appropriate;
     (3) Collaborate with permitting staff from the United States army corps of engineers, Seattle district, department of ecology, and department of fish and wildlife to develop, implement, and maintain complete permit application guidance. The guidance must identify the information that is required for agencies to consider a permit application complete; and
     (4) Perform internal quality assurance and quality control to ensure that permit applications are complete before submitting them to the regulatory agencies.

NEW SECTION.  Sec. 5   The legislature finds that an essential component of streamlined permit decision making is the ability of the department to demonstrate the capacity to meet environmental responsibilities. Therefore, the legislature directs that:
     (1) Qualified environmental staff within the department must supervise the development of all environmental documentation in accordance with the department's project delivery tools;
     (2) When appropriate, the department must conduct special prebid meetings for projects that are environmentally complex. In addition, the department must review environmental requirements related to these projects during the preconstruction meeting held with the contractor who is awarded the bid;
     (3) Environmental staff at the department, or consultant staff hired directly by the department, must conduct field inspections to ensure that project activities comply with permit conditions and environmental commitments. These inspectors:
     (a) Must notify the department's project engineer when compliance with permit conditions or environmental regulations are not being met; and
     (b) Must immediately notify the regulatory agencies with jurisdiction over the nonconforming work; and
     (4) When a project is not complying with a permit or environmental regulation, the project engineer must immediately order the contractor to stop all nonconforming work and implement measures necessary to bring the project into compliance with permits and regulations.

NEW SECTION.  Sec. 6   The legislature expects the department to continue its efforts to improve training and compliance. The department must:
     (1) Provide training in environmental procedures and permit requirements for those responsible for project delivery activities;
     (2) Require wetland mitigation sites to be designed by qualified technical specialists that meet training requirements developed by the department in consultation with the department of ecology. Environmental mitigation site improvements must have oversight by environmental staff;
     (3) Develop, implement, and maintain an environmental compliance data system to track permit conditions, environmental commitments, and violations;
     (4) Continue to implement the environmental compliance assurance procedure to ensure that appropriate agencies are notified and that action is taken to remedy noncompliant work as soon as possible. When work occurs that does not comply with environmental permits or regulations, the project engineer must document the lessons learned to make other project teams within the department aware of the violation to prevent reoccurrence; and
     (5) Provide an annual report summarizing violations of environmental permits and regulations to the legislature on March 1st of each year for violations occurring during the preceding year.

NEW SECTION.  Sec. 7   Nothing in this chapter may be interpreted to create a private right of action or right of review. Judicial review of the department's environmental review is limited to that available under chapter 43.21C RCW or applicable federal law.

NEW SECTION.  Sec. 8   A new section is added to chapter 90.58 RCW to read as follows:
     The maintenance, repair, replacement of structures, minor safety upgrades, and signage installation within the right-of-way of state highway facilities are not subject to review or approval by a local government under this chapter, including the approval of shoreline exemptions and other reviews conducted by local governments to implement this chapter. Examples of such actions include, but are not limited to: Pavement rehabilitation; luminaire and sign associated maintenance and replacement; bank protection and scour repair on existing structures and facilities; replacement of structurally deficient bridges; culvert cleanout and minor repair; storm water facility maintenance and repair; shoulders and slope repair; hazard/danger tree removal; traffic barrier installation, including cable barrier, guardrail, and landforms; rumble strip grinding; installation of intelligent transportation systems; and weigh-in-motion facilities. For purposes of this section, "minor safety upgrades" and "replacement of structures" do not include new travel lanes or the expansion of transportation facilities. The replacement of structures must be comparable to the original structure, including size, shape, configuration, and location, except to meet current engineering standards or environmental permit requirements.

NEW SECTION.  Sec. 9   A new section is added to chapter 43.21C RCW to read as follows:
     (1) The legislature recognizes the opportunity to gain efficiencies by reducing duplication between national and state environmental policy act compliance for state transportation projects.
     (2) The repair, reconstruction, restoration, retrofitting, or replacement of any road, highway, bridge, tunnel, ferry dock, or transit facility (such as a bus transfer station), including ancillary transportation facilities (such as pedestrian/bicycle paths and bike lanes), when undertaken by the state department of transportation are exempt from compliance with this chapter, as long as the actions: (a) Occur within the existing right-of-way and in a manner that substantially conforms to the preexisting design, function, and location as the original, except to meet current engineering standards or environmental permit requirements, or both; and (b) do not result in the addition of automobile lanes, a change in capacity, or a change in functional use of the facility. The issuance of applicable state and local agency permits or approvals associated with the repair or replacement of these facilities is also included in the exemption from compliance with this chapter.

Sec. 10   RCW 47.01.300 and 2012 c 62 s 1 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, the utilization of the mitigation option available in RCW 90.74.040, 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 RCW 90.74.040, to the relevant environmental regulatory authorities during the preliminary specifications and engineering phase of project development;
     (6) Use available technologies to minimize permit delays for, inform and interact with interested parties including relevant environmental regulatory authorities regarding, and optimize the effectiveness of proposed compensatory mitigation projects;
     (7)(a) In addition to the mitigation programs specified in RCW 90.74.040(1)(a), the correction of fish passage barriers on city streets and county roads located within the same watershed as the proposed project must be considered for compensatory mitigation. The department shall consult with the department of fish and wildlife, the appropriate local government, and interested tribes to prioritize fish passage barrier projects that: Maximize the value of investment; correct multiple fish passage barriers in whole streams rather than through individual, isolated projects; and maximize habitat recovery through coordination.
     (b) The department shall submit a report to the transportation committees of the legislature by December 1, 2015, regarding the use and effectiveness of the mitigation option created in this subsection as well as recommendations for improvements;
     (8) 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))) (9) Conduct special prebid meetings for those projects that are environmentally complex; and
     (((8))) (10) Review environmental considerations related to particular projects during the preconstruction meeting held with the contractor who is awarded the bid.

NEW SECTION.  Sec. 11   A new section is added to chapter 47.01 RCW to read as follows:
     (1) The department shall submit a report to the transportation committees of the legislature detailing engineering errors on highway construction projects resulting in project cost increases in excess of five hundred thousand dollars. The department must submit an initial report of an engineering error within thirty days upon recognition of the engineering error occurring. A full report must be submitted within ninety days of the submission of the initial report.
     (2) The department's full report must include an assessment and review of:
     (a) How the engineering error happened;
     (b) The department of the employee or employees responsible for the engineering error, without disclosing the name of the employee or employees;
     (c) What corrective action was taken;
     (d) The estimated total cost of the engineering error and how the department plans to mitigate that cost;
     (e) Whether the cost of the engineering error will impact the overall project financial plan; and
     (f) What action the secretary has recommended to avoid similar engineering errors in the future.

NEW SECTION.  Sec. 12   (1) The legislature finds that "right-sizing" is a lean, metric-based approach to determining project investments. This concept entails a compromise between project cost and design, incorporating local community needs, desired outcomes, and available funding. Furthermore, the legislature finds that the concepts and principles that the department of transportation has utilized in the safety analyst program have been effective tools to prioritize projects and reduce project costs.
     (2) The department of transportation shall report to the house of representatives and senate transportation committees on right-sizing by January 1, 2015. This report must include:
     (a) When and where the concept has been applied or is intended to be applied within the department; and
     (b) An assessment of the feasibility of extending the concept to all department of transportation capital programs, including costs and implications.

NEW SECTION.  Sec. 13   Sections 1 through 7 of this act constitute a new chapter in Title 47 RCW.