5765-S AAS 04/04/01 S2579

5765-S AAS 04/04/01 S2579.1

SSB 5765 - S AMD 215

By Senators Prentice and Swecker

ADOPTED 04/04/01

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. LEGISLATIVE INTENT AND FINDINGS. The legislature finds that the public health and safety of its citizens, natural resources, and the environment are vital interests of the state that need to be protected and preserved. The legislature further finds that the safety of the traveling public and the state's economic well-being are vital interests that depend upon the development of cost-effective and efficient transportation systems planned, designed, constructed, and maintained through expedited permit decision-making processes.

It is the intent of the legislature to achieve transportation permit reform to expedite the delivery of statewide significant transportation projects through a streamlined approach to environmental permit decision making while improving environmental benefits through a watershed‑based approach to aquatic and natural resource management. In order to optimize the limited resources available for transportation system improvements and environmental protection, state regulatory and natural resource agencies, public and private sector interests, Indian tribes, and the department of transportation must work cooperatively to establish common goals, minimize project delays, develop consistency in the application of environmental standards, maximize environmental benefits through coordinated investment strategies, and eliminate duplicative processes through delegation of selected permit drafting and compliance activities between state and federal agencies.

Therefore, the transportation permit efficiency and accountability committee is created. The committee must conduct three environmental permit streamlining pilot programs. The committee must also identify and develop general permits and a programmatic consultation process. Finally, the committee must explore other permit streamlining opportunities by designating transportation projects of statewide significance and selected delegation of permit authority.

NEW SECTION. Sec. 2. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Best available information" means the existing sources of data, including limiting factors analyses required under chapter 77.85 RCW that can be used to make informed decisions regarding environmental conditions within a watershed.

(2) "Best management practices" means currently available and generally accepted techniques, including new technologies or strategies that seek to reduce the negative impacts of transportation facilities, projects, and services on communities and the environment, and promote more efficient and effective use of transportation facilities. Examples include transportation demand management, transportation systems management, and compensatory mitigation.

(3) "Committee" means the transportation permit efficiency and accountability committee created in section 3 of this act.

(4) "General permit" means a permit that covers a geographic area and applies to a project activity. A general permit allows actions to proceed without individual review by each permit decision-making agency.

(5) "Larger-impacting projects" means projects that are likely to affect a species or its habitat and must be examined for ways to mitigate or reduce the impact to avoid harm.

(6) "Least cost planning" means the use of best available information within a watershed basin applied to transportation decision making in the planning, permit decision making, and mitigation phases of a project.

(7) "Low-impact development project" means an activity or series of actions that conform to a comprehensive land-use planning and engineering design approach with a goal of maintaining or restoring existing natural habitat functions and hydrologic regime of urban and developing watersheds. These projects incorporate strategic watershed planning with site-specific management techniques to reduce development impacts to better replicate natural watershed hydrology and water quality, while allowing for development or infrastructure rehabilitation to occur.

(8) "One‑stop permit decision making" means a coordinated permit decision-making process that streamlines environmental review and permit decision making for transportation projects by providing concurrent, consolidated review by each agency required to review the project.

(9) "Programmatic agreement" means a regulatory instrument that outlines permit conditions and obligations under which a variety of identified project activities for an agency program or other actions may be conducted within a watershed or other geographically defined territory, without the necessity of obtaining individual permits.

(10) "Transportation project of statewide significance" means a surface transportation project or combination of surface transportation projects, that crosses multiple city or county jurisdictional boundaries or connects major state destinations in support of the state's economy and is so designated by the department of transportation and approved by the transportation committees of the senate and house of representatives. The transportation committees of the senate and house of representatives may also designate such projects. The pilot projects established in section 4 of this act are examples of transportation projects of statewide significance, but transportation projects of statewide significance are not limited to the pilot projects.

NEW SECTION. Sec. 3. TRANSPORTATION PERMIT EFFICIENCY AND ACCOUNTABILITY COMMITTEE‑-CREATED. The transportation permit efficiency and accountability committee is created.

(1) The committee will consist of fifteen voting members, including two members of the house of representatives from each of the two largest caucuses and two members of the senate from each of the two largest caucuses; one member designated by the secretary of transportation; one member designated by the director of fish and wildlife; one member designated by the director of ecology; one member designated by the state commissioner of public lands; one member designated by the Northwest Indian Fisheries Commission; one member designated by the Columbia River Intertribal Fisheries Commission; two members appointed by the state transportation commission or its successor agency, upon consultation with the Association of Washington Cities and the Washington Association of Counties, to represent local government interests; one member appointed by the state transportation commission or its successor agency, upon consultation with the Consulting Engineers Council of Washington, the Associated General Contractors of Washington, and the Washington Construction Industry Council, to represent the construction industry; one member appointed by the state transportation commission or its successor agency, upon consultation with statewide environmental organizations, to represent environmental interests; and one member appointed by the state transportation commission or its successor agency, upon consultation with the state fish and wildlife commission, to represent the interests of citizens engaged in fish and wildlife recovery. The committee shall elect a chair from the four legislators appointed to the committee.

(2) Representatives from federal regulatory and transportation agencies, including the Environmental Protection Agency, National Marine Fisheries Service, Army Corps of Engineers, Federal Highways Administration, and United States Fish and Wildlife Service must be invited to participate in committee deliberations as nonvoting members.

(3) The committee may create technical subcommittees for the pilot projects designated in section 4 of this act and transportation projects of statewide significance. The technical subcommittees must include, but are not limited to, representatives of local governments from jurisdictions that have transportation projects of statewide significance. Decisions made by the technical subcommittee must be approved by a majority of the transportation permit efficiency and accountability committee.

(4) Nonvoting members will not be compensated but will receive reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(5) The department of transportation office of environmental affairs shall provide administrative and clerical assistance to the committee.

NEW SECTION. Sec. 4. PILOT PROJECTS. (1) It is the expectation of the legislature that a comprehensive approach to environmental permit decision making for transportation projects created between agencies, public and private sector interests, and tribes that focuses on concise design standards and a commitment to expedited permit decisions will minimize duplicative and time‑consuming permit processes and achieve a greater potential for benefit to the environment. Pilot efforts designed to delegate selected permit drafting and compliance activities to the department when agreement on standards are achieved and when compliance safeguards are implemented should be tested. To this end, the legislature directs the committee to select and conduct three permit reform pilot programs.

(2) The committee must select one permit reform pilot program that includes a mix of projects from each of the following geographic areas:

(a) The Translake and I‑405 congestion relief study areas to test the application of permit reform to near built-out conditions in urban areas within the Cedar‑Sammamish, Duwamish‑Green, and other applicable adjoining watersheds agreed to by the committee;

(b) Transportation projects that can be grouped for geographic permit decision making related to western Washington watersheds and salmon recovery areas for the Willapa, Grays‑Elochoman, Lewis, Salmon‑Washougal, Wind‑White Salmon, Klickitat, and other applicable adjoining watersheds agreed to by the committee; and

(c) Transportation projects that can be grouped for geographic permit decision making related to eastern Washington watersheds and salmon recovery areas for the Walla Walla, Middle Snake, Lower Snake, Rock‑Glade, and other applicable adjoining watersheds agreed to by the committee.

NEW SECTION. Sec. 5. COMMITTEE‑‑RESPONSIBILITIES FOR TRANSPORTATION PROJECTS OF STATEWIDE SIGNIFICANCE. (1) The committee and its authorized technical subcommittees shall develop a one-stop permit decision-making process that uses interdisciplinary review of transportation projects of statewide significance to streamline and expedite permit decision making. The one-stop permitting process must include early review and coordination between state regulatory agencies and the department in order to develop common environmental goals and strategies, and minimize subsequent changes to conditions.

(2) The committee must use a one-stop permitting process and other components identified in this chapter to:

(a) Link expedited permit decision making to best available information for a watershed; and

(b) Link investment strategy and priorities of the pilot watershed areas with the mitigation needs of the department along a geographic based approach.

(3) The committee must use an interdisciplinary permit review approach for each pilot project in order to:

(a) Provide coordinated and consolidated review and approval of permit applications;

(b) Provide coordinated and consolidated public hearings where required by one or more regulatory agencies under state law;

(d) Allow delegation of selected permit drafting and compliance activities to the department.

(5) The committee shall seek federal delegation authorities to the state where appropriate to streamline permit processes for transportation projects of statewide significance including: Delegation of section 404 permit authority under the Clean Water Act; nonfederal lead agency status under the federal Endangered Species Act; section 106 cultural resource designation under the National Historic Preservation Act; and other appropriate authority that when delegated should result in permit streamlining.

(6) The committee shall develop and prioritize a list of permit streamlining opportunities, specifically identifying substantive and procedural duplications and suggestions for resolving those duplications, and standard development needs. Based on the list of permit streamlining opportunities, the committee shall designate transportation projects of statewide significance and submit those projects to the transportation committees of the house of representatives and the senate.

(7) The committee must provide to the legislative authority of each county and city a list of the projects that the committee has designated as pilot projects or transportation projects of statewide significance. The committee must also provide each county and city with a list of projects designated as transportation projects of statewide significance by the transportation committees of the legislature.

(8) The committee must provide a summary report to the legislature every six months beginning September 15, 2001.

NEW SECTION. Sec. 6. COMMITTEE RESPONSIBILITIES FOR PROGRAMMATIC AGREEMENTS AND GENERAL PERMITS. The committee shall:

(1) Identify and develop general permits and programmatic consultation processes for low-impacting projects and for larger-impacting projects. The committee must develop general permits for evaluating low-impacting projects in three to six months from the effective date of this act and for larger-impacting projects in six to nine months from the effective date of this act. The committee must develop a programmatic consultation process for low-impacting projects in three to six months from the effective date of this act and for larger-impacting projects in six to nine months from the effective date of this act;

(2) Develop and implement a general permit program. At a minimum this program must require that decisions on minor variations to the requirements of the general permit or programmatic conditions must be provided by the permit decision-making agencies within fifteen business days of submittal; and

(3) Review the department's construction project list to determine which projects can be included in programmatic or general permit agreements. The committee shall develop agreements to cover those projects.

NEW SECTION. Sec. 7. GENERAL COMMITTEE RESPONSIBILITIES. The committee must:

(1) Evaluate the use of planning and permit decision-making standards that encourage low‑impact alternatives;

(2) Seek to accelerate the permit process for projects that use low‑impact development standards;

(3) Develop preliminary models and strategies to test how best to maximize the environmental investment of transportation funds within the framework of sections 1 through 6 of this act;

(4) Develop a uniform methodology for the timely and predictable submittal and evaluation of completed plans and specifications detailing project elements that impact environmental resources as well as proposed mitigation measures during the preliminary specifications and engineering phase of project development;

(5) Develop a least‑cost methodology for analyzing environmental impacts and applying compensatory mitigation consistent with a watershed-based approach before final design;

(6) Assess models to collate and access watershed data to support early agency involvement in transportation planning and reviews under the national Environmental Policy Act and the State Environmental Policy Act;

(7) In consultation with the department, identify projects that do not qualify as transportation projects of statewide significance or for programmatic review or general permit agreements, and develop a streamlined permit decision-making process for them;

(8) Collaborate with appropriate agencies and parties to develop concise environmental standards and best management practices for transportation projects that can be applied with certainty, consistency, and assurance of swift permit action, while taking into account the varying climate, geomorphologic, and hydrologic conditions throughout the state. The standards and best management practices may use prescriptive or performance standards and must meet all current relevant federal, state, and local environmental and land use regulations;

(9) Create a streamlined permit decision-making and consultation process for transportation projects for section 404 federal Clean Water Act permits and section 10 permits issued by the United States Army Corps of Engineers, section 401 and 402 permits issued by the department of ecology, shoreline approvals reviewed by the department of ecology, hydraulic project approvals issued by the department of fish and wildlife, and any other applicable permit issued for transportation projects;

(10) Use existing best available information from watershed planning efforts, lead entities, regional fisheries enhancement groups, and other recognized entities as deemed appropriate by the committee, to determine potential mitigation requirements for projects within a watershed. Priority consideration should be given to the use of the state's alternative mitigation to best link transportation mitigation needs with local watershed and lead entity project lists;

(11) Give consideration to flexible approaches that maximize transportation and environmental interests;

(12) Work with the department of ecology to develop a virtual one-stop environmental permitting center to provide interested parties and citizens with information regarding environmental permitting requirements; and

(13) Develop a dispute resolution process to resolve conflicts in interpretation of environmental standards and best management practices, mitigation requirements, permit requirements, and other related issues by September 15, 2001. Every effort to include federal agencies in the dispute resolution process must be made. A list of ongoing disputed issues must be included in the committee's report to the legislature.

NEW SECTION. Sec. 8. DEPARTMENT ORGANIZATION AND ADMINISTRATIVE ACTIONS. 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 shall lead the development of all environmental documentation associated with department projects and permit activities in accordance with the department's project delivery tools.

(2) The department shall conduct special prebid meetings for projects that are environmentally complex. In addition, the department shall review environmental considerations related to these projects during the preconstruction meeting held with the contractor who is awarded the bid.

(3) Environmental staff at the department shall conduct field inspections to ensure that project activities are performed under permit conditions. These inspectors must:

(a) Have the ability to issue stop work orders when compliance with permit standards are not being met;

(b) For this portion of their job duties, be accountable to the director of the office of environmental services of the department.

(4) Failure to comply with a stop work order may result in civil penalties being assessed against the department and individuals involved. Willful violation of a stop work notice issued by the department is subject to civil penalties assessed on the agency as well as the individuals involved. Persistent violations by the department may result in loss of permit drafting and program management responsibilities.

NEW SECTION. Sec. 9. TRAINING AND COMPLIANCE. The legislature expects the department to continue its efforts to improve training and compliance. The department shall:

(1) Provide training in environmental procedures and permit requirements for those responsible for project delivery activities;

(2) Require wetland mitigation sites to be designed by trained biologist or landscape architects, qualified by the department of ecology's wetland program. Environmental mitigation site improvements must have oversight conducted by environmental staff;

(3) Develop an environmental compliance data system to track all permit conditions;

(4) Report all noncompliance activities to applicable agencies of jurisdiction along with a remedy plan;

(5) Fund the departments of ecology, natural resources, and fish and wildlife, operating under their permit-granting authority to conduct audits of the department's permit drafting and compliance activities. The department of ecology shall collate the audits in an annual report to the legislature;

(6) Fund dedicated technical staff at federal permit decision-making entities and the state departments of ecology, natural resources, community, trade, and economic development, and fish and wildlife to implement the requirements of this chapter;

(7) Fund a technical specialist at the Northwest Indian Fisheries Commission and the Columbia River Intertribal Fisheries Commission for the purpose of implementing this chapter;

(8) Reimburse local jurisdictions for costs associated with local participation on the committee and technical subcommittees.

NEW SECTION. Sec. 10. Captions used in this act are not part of the law.

NEW SECTION. Sec. 11. Sections 1 through 10 of this act constitute a new chapter in Title 47 RCW."

SSB 5765 - S AMD 215

By Senators Prentice and Swecker

ADOPTED 04/04/01

In line 3 of the title, after "projects;" strike the remainder of the title and insert "adding a new chapter to Title 47 RCW; and prescribing penalties."