S-2162

AN ACT Relating to improving the efficiency and accountability of the environmental permitting and compliance process for transportation projects; adding new sections to chapter 36.70A RCW; creating a new section; and prescribing penalties.

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

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 review processes.

It is the intent of the legislature to achieve transportation permit reform to expedite the delivery of statewide significant transportation projects while striving to increase 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 agreed-upon standards, and maximize environmental benefits through coordinated investment strategies. Increased certainty and consistency of actions through the development of agreed-upon environmental standards, and the elimination of duplicative processes through delegated permit responsibilities between state and federal agencies is imperative to meet the needs of the state.

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) "Department" means the state department of transportation.

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

(6) "One‑stop permitting" means a coordinated permitting process that streamlines environmental review and approval of transportation projects by providing concurrent, consolidated review by each agency required to review and approve the project.

(7) "Programmatic agreement" means a regulatory instrument that outlines permit conditions and obligations for a variety of similar project activities spanning a watershed ecosystem or geographically defined boundary, that once entered into by parties, delineates an applicant's proposed actions over a specific period of time, that may be conducted without the necessity of obtaining individual permits for the types of projects identified.

(8) "Transportation project of statewide significance" means a project or combination of projects, that cross multiple city or county jurisdictional boundaries or connects major state destinations in support of the state's economy and are 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.

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 designated by the house of representatives and two members designated by the senate; 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, 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 individual projects. The technical subcommittees must include, but are not limited to, representatives from those local governments electing to participate under section 4(2) of this act.

(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. (1) This section establishes procedures for allowing local governments to participate in the processes identified in sections 5 and 6 of this act in order to provide for coordinated multijurisdictional environmental review and permitting decisions for projects of statewide significance, projects eligible for programmatic review, and projects eligible for general permit agreements.

(2) Each city and county within whose boundaries is located or partially located one or more projects identified in subsection (1) of this section, shall elect whether or not to participate in coordinated processes for environmental review and permitting of those projects and notify the committee within sixty days of project designation.

(3) If the county or city elects not to participate in the coordinated processes for designated projects, it shall notify the committee within sixty days of the project designation, and the state shall administer the local environmental review and permit requirements.

NEW SECTION. Sec. 5. COMMITTEE‑‑RESPONSIBILITIES. The committee and its authorized technical subcommittees shall:

(1) Develop a one-stop permitting process that uses interdisciplinary review of transportation projects to streamline and expedite approval of required permits consistent with chapter 90.60 RCW. 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) 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 must meet the intent of all current relevant federal, state, and local environmental regulations. Actions to achieve this goal must include:

(a) Identification and development of general permits and programmatic consultation processes for low-impacting projects developed in three to six months and for larger-impacting projects developed in six to nine months;

(b) Development and implementation of a general permit program that allows actions to proceed without individual project reviews by the permitting agencies. Concurrence on minor variations to the requirements of the general permit or programmatic conditions must be provided by the permitting agencies within fifteen business days of submittal;

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

(e) Development of preliminary models and strategies to test how best to maximize the environmental investment of transportation funds within the framework of sections 1 through 8 of this act;

(3) 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 such as developing agreement on state transportation storm water standards;

(4) Create a streamlined permitting and consultation process for transportation projects for section 404 federal Clean Water Act 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 master permits 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;

(5) Develop a uniform methodology for the timely and predictable submittal and evaluation of plans completed 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;

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

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

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

(9) 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 site requirements for project actions within a watershed. Priority consideration should be given to the use of the state's alternative mitigation strategy to best link transportation mitigation needs with local watershed and lead entity project lists;

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

(11) Seek federal delegation authorities to the state where appropriate to streamline permit processes 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;

(12) 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. 6. PILOT PROJECTS. It is the expectation of the legislature that a comprehensive approach to environmental permitting of 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 process permit writing 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 conduct three permit reform pilot projects. The pilot projects must:

(1) Include a mix of projects and areas to encompass:

(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;

(b) Transportation projects that can be grouped for geographic permitting 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;

(c) Transportation projects that can be grouped for geographic permitting related to eastern Washington watersheds and salmon recovery areas for the Walla Walla, Middle Snake, Lower Snake, Rock‑Glade, and other applicable adjoining watersheds;

(2) Deploy and monitor the one-stop permit center to the pilot projects and other components identified in section 4 of this act to:

(a) Link expedited permit decision making to best available information in a basin;

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

(3) 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 permit drafting and compliance activities to the department;

(4) Give consideration to flexible approaches that maximize transportation and environmental investments;

(5) Provide a summary report to the legislature every six months beginning September 15, 2001.

NEW SECTION. Sec. 7. DEPARTMENT ORGANIZATION AND ADMINISTRATIVE ACTIONS. The legislature finds that an essential component of delegated federal or state permitting authority to the department is the ability of the department to demonstrate the capacity to meet environmental responsibilities. Therefore, the legislature directs that:

(1) 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 managing project delivery tools.

(2) Certified environmental staff or certified consultants must be given the responsibility to draft environmental permits for the department.

(3) 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.

(4) 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. 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 writing and program management responsibilities;

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

NEW SECTION. Sec. 8. 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) Provide resource agency-approved certification training for permit writers and environmental inspectors;

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

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

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

(6) 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 writing and compliance activities. The department of ecology shall collate the audits in an annual report to the legislature;

(7) Fund dedicated technical staff at federal permitting 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;

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

NEW SECTION. Sec. 9. Sections 1 through 8 of this act are added to chapter 36.70A RCW.

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