2671-S2

2671-S2.E AMS FRAS S4866.1

E2SHB 2671 - S AMD 861

By Senators Fraser and Morton

ADOPTED 03/13/02

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. (1) The legislature finds that the health and safety of its citizens, natural resources, and the environment are vital interests of the state that must be protected to preserve the state's quality of life. The legislature also finds that the state's economic well-being is a vital interest that depends upon the development of fair, coordinated environmental permitting processes that ensure that the state not only protects natural resources but also encourages appropriate activities that stimulate growth and development. The legislature further finds that Washington's environmental protection programs have established strict standards to reduce pollution and protect public health and safety and the environment.

(2) The legislature also finds that, as the number of environmental and land use laws have grown in Washington, so have the number of permits required of business and government. The increasing number of individual permits and permit agencies has generated the potential for conflict, overlap, and duplication among various state, local, and federal permits. Lack of coordination in the processing of project applications may cause costly delays and frustration to applicants.

(3) The legislature further finds that not all project applicants require the same type of assistance. Applicants with small projects may merely need information about local and state permits and assistance in applying for those permits, while intermediate-sized projects may require a facilitated permit process, and large complex projects may need extensive coordination among local, state, and federal agencies and tribal governments.

(4) The legislature, therefore, finds that a range of assistance and coordination options should be available to project applicants from a state office independent of any local, state, or federal permit agency. The legislature finds that citizens, businesses, and project applicants should be provided with:

(a) A reliable and consolidated source of information concerning federal, state, and local environmental and land use laws and procedures that may apply to any given project;

(b) Facilitated interagency forums for discussion of significant issues related to the multiple permitting processes if needed for some project applicants; and

(c) Active coordination of all applicable regulatory and land use permitting procedures if needed for some project applicants.

(5) The legislature declares that the purpose of this chapter is to transfer the existing permit assistance center in the department of ecology to a new office of permit assistance in the office of financial management to:

(a) Assure that citizens, businesses, and project applicants will continue to be provided with vital information regarding environmental and land use laws and with assistance in complying with environmental and land use laws to promote understanding of these laws and to protect public health and safety and the environment;

(b) Ensure that facilitation of project permit decisions by permit agencies promotes both process efficiency and environmental protection;

(c) Allow for coordination of permit processing for large projects upon project applicants' request and at project applicants' expense to promote efficiency, ensure certainty, and avoid conflicts among permit agencies; and

(d) Provide these services through an office independent of any permit agency to ensure that any potential or perceived conflicts of interest related to providing these services or making permit decisions can be avoided.

(6) The legislature intends that establishing an office of permit assistance will provide these services without abrogating or limiting the authority of any permit agency to make decisions on permits that it issues. The legislature therefore declares that the office of permit assistance shall have authority to provide these services but shall not have any authority to make decisions on permits.

NEW SECTION. Sec. 2. (1) The office of permit assistance is created in the office of financial management and shall be administered by the office of the governor to assist citizens, businesses, and project applicants.

(2) The office shall:

(a) Maintain and furnish information as provided in section 5 of this act;

(b) Furnish facilitation as provided in section 6 of this act;

(d) Coordinate cost reimbursement as provided in section 8 of this act;

(e) Work with state agencies and local governments to continue to develop a range of permit assistance options for project applicants;

(f) Review initiatives developed by the transportation permit efficiency and accountability committee established in chapter 47.06C RCW and determine if any would be beneficial if implemented for other types of projects;

(g) Work to develop informal processes for dispute resolution between agencies and permit applicants;

(h) Conduct customer surveys to evaluate its effectiveness; and

(i) Provide the following biennial reports to the governor and the appropriate committees of the legislature:

(i) A performance report, based on the customer surveys required in (h) of this subsection;

(ii) A report on any statutory or regulatory conflicts identified by the office in the course of its duties that arise from differing legal authorities and roles of agencies and how these were resolved. The report may include recommendations to the legislature and to agencies; and

(iii) A report regarding use of outside independent consultants under section 8 of this act, including the nature and amount of work performed and implementation of requirements relating to costs.

(3) The office shall give priority to furnishing assistance to small projects when expending general fund moneys allocated to it.

NEW SECTION. Sec. 3. (1) The office shall operate on the principle that citizens of the state of Washington should receive the following information regarding permits:

(a) A date and time for a decision on a permit;

(b) The information required for an agency to make a decision on a permit, recognizing that changes in the project or other circumstances may change the information required; and

(c) An estimate of the maximum amount of costs in fees, studies, or public processes that will be incurred by the project applicant.

(2) This section does not create an independent cause of action, affect any existing cause of action, or establish time limits for purposes of RCW 64.40.020.

NEW SECTION. Sec. 4. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Office" means the office of permit assistance in the office of financial management established in section 2 of this act.

(2) "Permit" means any permit, certificate, use authorization, or other form of governmental approval required in order to construct or operate a project in the state of Washington.

(3) "Permit agency" means any state or local agency authorized by law to issue permits.

(4) "Project" means any activity, the conduct of which requires a permit or permits from one or more permit agencies.

(5) "Project applicant" means a citizen, business, or any entity seeking a permit or permits in the state of Washington.

NEW SECTION. Sec. 5. The office shall assist citizens, businesses, and project applicants by maintaining and furnishing information, including, but not limited to:

(1) To the extent possible, compiling and periodically updating one or more handbooks containing lists and explanations of permit laws, including all relevant local, state, federal, and tribal laws. In providing this information, the office shall seek the cooperation of relevant local, state, and federal agencies and tribal governments;

(2) Establishing and providing notice of a point of contact for obtaining information;

(3) Working closely and cooperatively with the business license center in providing efficient and nonduplicative service;

(4) Collecting and making available information regarding federal, state, local, and tribal government programs that rely on private professional expertise to assist agencies in project permit review; and

(5) Developing a call center and a web site.

NEW SECTION. Sec. 6. At the request of a project applicant, the office shall assist the project applicant in determining what regulatory requirements, processes, and permits apply to the project, as provided in this section.

(1) The office shall assign a project facilitator who shall discuss applicable regulatory requirements, permits, and processes with the project applicant and explain the available options for obtaining required permits.

(2) If the project applicant and the project facilitator agree that the project would benefit from a project scoping, the project facilitator shall conduct a project scoping by the project applicant and the relevant state and local permit agencies. The project facilitator shall invite the participation of the relevant federal permit agencies and tribal governments.

(a) The purpose of the project scoping is to identify the issues and information needs of the project applicant and the participating permit agencies regarding the project, share perspectives, and jointly develop a strategy for the processing of required permits by each participating permit agency.

(b) The scoping shall address:

(i) The permits that are required for the project;

(ii) The permit application forms and other application requirements of the participating permit agencies;

(iii) The specific information needs and issues of concern of each participant and their significance;

(iv) Any statutory or regulatory conflicts that might arise from the differing authorities and roles of the permit agencies;

(v) Any natural resources, including federal or state listed species, that might be adversely affected by the project and might cause an alteration of the project or require mitigation; and

(vi) The anticipated time required for permit decisions by each participating permit agency, including the time required to determine if the permit application is complete, to conduct environmental review, and to review and process the application. In determining the time required, full consideration must be given to achieving the greatest possible efficiencies through any concurrent studies and any consolidated applications, hearings, and comment periods.

(c) The outcome of the project scoping shall be documented in writing, furnished to the project applicant, and be made available to the public.

(d) The project scoping shall be completed within sixty days of the project applicant's request for a project scoping.

(e) Upon completion of the project scoping, the participating permit agencies shall proceed under their respective authority. The agencies are encouraged to remain in communication for purposes of coordination until their final permit decisions are made.

(3) This section does not create an independent cause of action, affect any existing cause of action, or establish time limits for purposes of RCW 64.40.020.

NEW SECTION. Sec. 7. (1) The office may coordinate the processing by participating permit agencies of permits required for a project, at the request of the project applicant through a cost reimbursement agreement as provided in subsection (3) of this section or with the agreement of the project applicant as provided in subsection (4) of this section.

(2) The office shall assign a project coordinator to perform any or all of the following functions, as specified by the terms of a cost reimbursement agreement under subsection (3) of this section or an agreement under subsection (4) of this section:

(a) Serve as the main point of contact for the project applicant; (b) Conduct a project scoping as provided in section 6(2) of this act;

(d) Coordinate the permit processes of the permit agencies;

(e) Manage the applicable administrative procedures;

(f) Work to assure that timely permit decisions are made by the permit agencies and maintain contact with the project applicant and the permit agencies to ensure adherence to schedules;

(g) Assist in resolving any conflict or inconsistency among permit requirements and conditions; and

(h) Coordinate with relevant federal permit agencies and tribal governments to the extent possible.

(3) At the request of a project applicant and as provided in section 8 of this act, the project coordinator shall coordinate negotiations among the project applicant, the office, and participating permit agencies to enter into a cost reimbursement agreement and shall coordinate implementation of the agreement, which shall govern coordination of permit processing by the participating permit agencies.

(4) The office may determine that it is in the public interest to coordinate the processing of permits for certain projects that are complex in scope, require multiple permits, involve multiple jurisdictions, or involve a significant number of affected parties. Upon such a determination, the office may enter into an agreement with the project applicant and the participating permit agencies to coordinate the processing of permits for the project. The office may limit the number of such agreements according to the resources available to the office and the permit agencies at the time.

NEW SECTION. Sec. 8. (1) The office may coordinate negotiation and implementation of a written agreement among the project applicant, the office, and participating permit agencies to recover from the project applicant the reasonable costs incurred by the office in carrying out the provisions of sections 6(2) and 7(2) of this act and by participating permit agencies in carrying out permit processing tasks specified in the agreement.

(2) The office may coordinate negotiation and implementation of a written agreement among the project applicant, the office, and participating permit agencies to recover from the project applicant the reasonable costs incurred by outside independent consultants selected by the office and participating permit agencies to perform permit processing tasks.

(3) Outside independent consultants may only bill for the costs of performing those permit processing tasks that are specified in a cost reimbursement agreement under this section. The billing process shall provide for accurate time and cost accounting and may include a billing cycle that provides for progress payments.

(4) The office shall adopt a policy to coordinate cost reimbursement agreements with outside independent consultants. Cost reimbursement agreements coordinated by the office under this section must be based on competitive bids that are awarded for each agreement from a prequalified consultant roster.

(5) Independent consultants hired under a cost reimbursement agreement, shall report directly to the permit agency. The office shall assure that final decisions are made by the permit agency and not by the consultant.

(6) The office shall develop procedures for determining, collecting, and distributing cost reimbursement for carrying out the provisions of this chapter.

(7) For a cost reimbursement agreement, the office and participating permit agencies shall negotiate a work plan and schedule for reimbursement. Prior to distributing scheduled reimbursement to the agencies, the office shall verify that the agencies have met the obligations contained in their work plan.

(8) Prior to commencing negotiations with the project applicant for a cost reimbursement agreement, the office shall request work load analyses from each participating permitting agency. These analyses shall be available to the public. The work load of a participating permit agency may only be modified with the concurrence of the agency and if there is both good cause to do so and no significant impact on environmental review.

(9) The office shall develop guidance to ensure that, in developing cost reimbursement agreements, conflicts of interest are eliminated.

(10) For project permit processes that it coordinates, the office shall coordinate the negotiation of all cost reimbursement agreements executed under RCW 43.21A.690, 43.30.420, 43.70.630, 43.300.080, and 70.94.085. The office and the permit agencies shall be signatories to the agreements. Each permit agency shall manage performance of its portion of the agreement.

(11) If a permit agency or the project applicant foresees, at any time, that it will be unable to meet its obligations under the cost reimbursement agreement, it shall notify the office and state the reasons. The office shall notify the participating permit agencies and the project applicant and, upon agreement of all parties, adjust the schedule, or, if necessary, coordinate revision of the work plan.

NEW SECTION. Sec. 9. (1) There is established the permit assistance advisory council. The council shall:

(a) Assess the performance of the office;

(b) Review customer surveys conducted by the office to determine the effectiveness of the office; and

(2) The council shall be composed of eleven members.

(a) The governor shall appoint seven members, who shall reflect geographical balance and the diversity of population within Washington state. The governor shall include representation from business, the environmental community, agriculture, port districts, counties, cities, and the tribes.

(b) Two members shall be members of the senate selected by the president of the senate with one member selected from each caucus in the senate, and two members shall be members of the house of representatives selected by the speaker of the house of representatives with one member selected from each caucus in the house of representatives. The legislative members shall be nonvoting members of the council.

(3) Nonlegislative members shall serve four-year terms. Of the initial members appointed to the council, two shall serve for two years, two shall serve for three years, and three shall serve for four years. Thereafter members shall be appointed to four-year terms.

(4) Vacancies shall be filled by appointment in the same manner as the original appointment for the remainder of the unexpired term of the position being vacated.

(5) Nonlegislative members shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060. Legislative members shall be reimbursed as provided in RCW 44.04.120.

(6) The council shall elect a chair and a vice-chair from the voting members. The chair and vice-chair shall serve a term of one year.

(7) The council shall meet at least four times per year.

NEW SECTION. Sec. 10. (1) The powers, duties, and functions of the permit assistance center at the department of ecology are transferred to the office created in section 2 of this act.

(2)(a) All reports, documents, surveys, books, records, files, papers, or written material in the possession of the department of ecology pertaining to the powers, functions, and duties transferred shall be delivered to the custody of the office. All cabinets, furniture, office equipment, motor vehicles, and other tangible property employed by the department of ecology in carrying out the powers, functions, and duties transferred shall be made available to the office. All funds, credits, or other assets held in connection with the powers, functions, and duties transferred shall be assigned to the office.

(b) Any appropriations made to the department of ecology for carrying out the powers, functions, and duties transferred shall, on June 30, 2002, be transferred and credited to the office.

(c) Whenever any question arises as to the transfer of any personnel, funds, books, documents, records, papers, files, equipment, or other tangible property used or held in the exercise of the powers and the performance of the duties and functions transferred, the director of financial management shall make a determination as to the proper allocation and certify the same to the state agencies concerned.

(3) All rules and all pending business before the department of ecology pertaining to the powers, functions, and duties transferred shall be continued and acted upon by the office. All existing contracts and obligations shall remain in full force and shall be performed by the office.

(4) The transfer of the powers, duties, and functions of the permit assistance center shall not affect the validity of any act performed before the effective date of this act.

(5) If apportionments of budgeted funds are required because of the transfers directed by this section, the director of financial management shall certify the apportionments to the agencies affected, the state auditor, and the state treasurer. Each of these shall make the appropriate transfer and adjustments in funds and appropriation accounts and equipment records in accordance with the certification.

NEW SECTION. Sec. 11. Nothing in this chapter affects the jurisdiction of the energy facility site evaluation council under chapter 80.50 RCW.

NEW SECTION. Sec. 12. (1) Nothing in this chapter shall be construed to abrogate or diminish the functions, powers, or duties granted to any permit agency by law.

(2) Nothing in this chapter grants the office authority to decide if a permit shall be issued. The authority for determining if a permit shall be issued shall remain with the permit agency.

NEW SECTION. Sec. 13. A new section is added to chapter 43.131 RCW to read as follows:

The office of permit assistance established in section 2 of this act and its powers and duties shall be terminated June 30, 2007, as provided in section 14 of this act.

NEW SECTION. Sec. 14. A new section is added to chapter 43.131 RCW to read as follows:

The following acts or parts of acts, as now existing or hereafter amended, are each repealed, effective June 30, 2008:

(1) Section 1 of this act;

(2) Section 2 of this act;

(3) Section 3 of this act;

(4) Section 4 of this act;

(5) Section 5 of this act;

(6) Section 6 of this act;

(7) Section 7 of this act;

(8) Section 8 of this act;

(9) Section 9 of this act;

(10) Section 10 of this act;

(11) Section 11 of this act; and

(12) Section 12 of this act.

NEW SECTION. Sec. 15. The joint legislative and audit review committee shall work within its existing resources in conducting the sunset review for the office of permit assistance.

NEW SECTION. Sec. 16. Sections 1 through 12 of this act constitute a new chapter in Title 43 RCW.

NEW SECTION. Sec. 17. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2002, in the omnibus appropriations act, this act is null and void.

NEW SECTION. Sec. 18. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."

E2SHB 2671 - S AMD 861

By Senators Fraser and Morton

ADOPTED 03/13/02

On page 1, line 2 of the title, after "ecology;" strike the remainder of the title and insert "adding new sections to chapter 43.131 RCW; adding a new chapter to Title 43 RCW; creating new sections; and declaring an emergency."