BILL REQ. #:  H-4163.2 

Prefiled 01/07/08. Read first time 01/14/08.   Referred to Committee on Ecology & Parks.

     AN ACT Relating to providing environmental analysis of impacts to endangered marine species; amending RCW 43.21C.075 and 43.21C.110; adding a new section to chapter 43.21C RCW; adding a new section to chapter 77.12 RCW; adding a new section to chapter 79.10 RCW; adding a new section to chapter 43.21A RCW; adding a new section to chapter 35.21 RCW; adding a new section to chapter 35A.21 RCW; adding a new section to chapter 36.32 RCW; and adding a new section to chapter 53.08 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 43.21C RCW to read as follows:
     (1) In addition to any other requirements of this chapter, any public entity required by sections 2 through 8 of this act to prepare an endangered marine species review prior to issuing a final permit, lease, or other approval shall prepare and publish in the Washington State Register the following prior to final issuance of the permit or lease:
     (a) An analysis of any potential impacts the permit, lease, or other approval may have on endangered marine species;
     (b) An analysis of any potential changes to the proposal requiring a permit, lease, or other approval that may lessen the proposal's impacts on endangered marine species; and
     (c) Any other details required by rules adopted pursuant to RCW 43.21C.110.
     (2) Any analysis conducted under this section must include all direct impacts on endangered marine species and all reasonable and foreseeable indirect impacts such as impacts on habitat, food sources, and birthing areas.
     (3)(a) The preparation of any analysis required by this section may be either:
     (i) Completed directly by the public entity responsible for issuing the permit, lease, or other approval;
     (ii) Contracted to a private third party by the public entity responsible for issuing the permit, lease, or other approval; or
     (iii) Completed by the entity requesting the permit, lease, or other approval and subsequently approved by the appropriate public entity.
     (b) If the analysis is completed directly by a public entity, or contracted to a third party by a public entity, the actual cost of preparing and publishing the analysis under this section may be collected by the public entity from the applicant for the permit, lease, or other approval. Any reimbursement of cost under this section is in addition to any applicable permit fees or lease rates.
     (4) If the public entity required by this section to complete an endangered marine species review determines that the review cannot be completed prior to the issuance of the final permit, lease, or other approval due to statutory deadlines or extenuating circumstances, then an explanation of those circumstances must be published in the Washington State Register prior to the final issuance of the permit, lease, or other approval and the requirements of this section must be completed in full no more than sixty days after the issuance of the permit, lease, or other approval.
     (5) If the endangered marine species review prepared under this section finds a potential impact to endangered marine species, then the public entity may, instead of publishing the entire endangered marine species review in the Washington State Register, instead publish an abbreviated finding along with directions as to how to access the full endangered marine species review.
     (6) As used in this section, the term "endangered marine species" means all members of the following taxonomical genera that are identified by the fish and wildlife commission as an endangered species under RCW 77.12.020: Balaenoptera, Megaptera, Orcinus, Physeter, Balaena.

NEW SECTION.  Sec. 2   A new section is added to chapter 77.12 RCW to read as follows:
     (1) Prior to the final issuance of any permits, leases, or other approvals under this title for projects or proposals to occur within or adjacent to marine aquatic habitats, the department must conduct and finalize an endangered marine species review under section 1 of this act.
     (2) This section does not apply to licenses issued under chapter 77.32 or 77.65 RCW or to emergency oral permits under RCW 77.55.021.

NEW SECTION.  Sec. 3   A new section is added to chapter 79.10 RCW under the subchapter heading "Part 1 General Provisions" to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals under this title for projects or proposals to occur within or adjacent to marine aquatic habitats, including on state-owned aquatic lands, the department must conduct and finalize an endangered marine species review under section 1 of this act.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.21A RCW to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals by the department for projects or proposals to occur within or adjacent to marine aquatic habitats, the department must conduct and finalize an endangered marine species review under section 1 of this act.

NEW SECTION.  Sec. 5   A new section is added to chapter 35.21 RCW to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals by a city or town for projects or proposals to occur within or adjacent to marine aquatic habitats, the city or town must conduct and finalize an endangered marine species review under section 1 of this act.

NEW SECTION.  Sec. 6   A new section is added to chapter 35A.21 RCW to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals by a code city for projects or proposals to occur within or adjacent to marine aquatic habitats, the code city must conduct and finalize an endangered marine species review under section 1 of this act.

NEW SECTION.  Sec. 7   A new section is added to chapter 36.32 RCW to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals by a county for projects or proposals to occur within or adjacent to marine aquatic habitats, the county must conduct and finalize an endangered marine species review under section 1 of this act.

NEW SECTION.  Sec. 8   A new section is added to chapter 53.08 RCW to read as follows:
     Prior to the final issuance of any permits, leases, or other approvals by a port district for projects or proposals to occur within or adjacent to marine aquatic habitats, the port district must conduct and finalize an endangered marine species review under section 1 of this act.

Sec. 9   RCW 43.21C.075 and 1997 c 429 s 49 are each amended to read as follows:
     (1) Because a major purpose of this chapter is to combine environmental considerations with public decisions, any appeal brought under this chapter shall be linked to a specific governmental action. The state environmental policy act provides a basis for challenging whether governmental action is in compliance with the substantive and procedural provisions of this chapter. The state environmental policy act is not intended to create a cause of action unrelated to a specific governmental action.
     (2) Unless otherwise provided by this section:
     (a) Appeals under this chapter, including section 1 of this act, shall be of the governmental action together with its accompanying environmental determinations.
     (b) Appeals of environmental determinations made (or lacking) under this chapter, including section 1 of this act, shall be commenced within the time required to appeal the governmental action which is subject to environmental review.
     (3) If an agency has a procedure for appeals of agency environmental determinations made under this chapter, such procedure:
     (a) Shall allow no more than one agency appeal proceeding on each procedural determination (the adequacy of a determination of significance/nonsignificance or of a final environmental impact statement);
     (b) Shall consolidate an appeal of procedural issues and of substantive determinations made under this chapter (such as a decision to require particular mitigation measures or to deny a proposal) with a hearing or appeal on the underlying governmental action by providing for a single simultaneous hearing before one hearing officer or body to consider the agency decision or recommendation on a proposal and any environmental determinations made under this chapter, with the exception of:
     (i) An appeal of a determination of significance;
     (ii) An appeal of a procedural determination made by an agency when the agency is a project proponent, or is funding a project, and chooses to conduct its review under this chapter, including any appeals of its procedural determinations, prior to submitting an application for a project permit;
     (iii) An appeal of a procedural determination made by an agency on a nonproject action; or
     (iv) An appeal to the local legislative authority under RCW 43.21C.060 or other applicable state statutes;
     (c) Shall provide for the preparation of a record for use in any subsequent appeal proceedings, and shall provide for any subsequent appeal proceedings to be conducted on the record, consistent with other applicable law. An adequate record consists of findings and conclusions, testimony under oath, and taped or written transcript. An electronically recorded transcript will suffice for purposes of review under this subsection; and
     (d) Shall provide that procedural determinations made by the responsible official shall be entitled to substantial weight.
     (4) If a person aggrieved by an agency action has the right to judicial appeal and if an agency has an administrative appeal procedure, such person shall, prior to seeking any judicial review, use such agency procedure if any such procedure is available, unless expressly provided otherwise by state statute.
     (5) Some statutes and ordinances contain time periods for challenging governmental actions which are subject to review under this chapter, such as various local land use approvals (the "underlying governmental action"). RCW 43.21C.080 establishes an optional "notice of action" procedure which, if used, imposes a time period for appealing decisions under this chapter. This subsection does not modify any such time periods. In this subsection, the term "appeal" refers to a judicial appeal only.
     (a) If there is a time period for appealing the underlying governmental action, appeals under this chapter shall be commenced within such time period. The agency shall give official notice stating the date and place for commencing an appeal.
     (b) If there is no time period for appealing the underlying governmental action, and a notice of action under RCW 43.21C.080 is used, appeals shall be commenced within the time period specified by RCW 43.21C.080.
     (6)(a) Judicial review under subsection (5) of this section of an appeal decision made by an agency under subsection (3) of this section shall be on the record, consistent with other applicable law.
     (b) A taped or written transcript may be used. If a taped transcript is to be reviewed, a record shall identify the location on the taped transcript of testimony and evidence to be reviewed. Parties are encouraged to designate only those portions of the testimony necessary to present the issues raised on review, but if a party alleges that a finding of fact is not supported by evidence, the party should include in the record all evidence relevant to the disputed finding. Any other party may designate additional portions of the taped transcript relating to issues raised on review. A party may provide a written transcript of portions of the testimony at the party's own expense or apply to that court for an order requiring the party seeking review to pay for additional portions of the written transcript.
     (c) Judicial review under this chapter shall without exception be of the governmental action together with its accompanying environmental determinations.
     (7) Jurisdiction over the review of determinations under this chapter in an appeal before an agency or superior court shall upon consent of the parties be transferred in whole or part to the shorelines hearings board. The shorelines hearings board shall hear the matter and sign the final order expeditiously. The superior court shall certify the final order of the shorelines hearings board and the certified final order may only be appealed to an appellate court. In the case of an appeal under this chapter regarding a project or other matter that is also the subject of an appeal to the shorelines hearings board under chapter 90.58 RCW, the shorelines hearings board shall have sole jurisdiction over both the appeal under this section and the appeal under chapter 90.58 RCW, shall consider them together, and shall issue a final order within one hundred eighty days as provided in RCW 90.58.180.
     (8) For purposes of this section and RCW 43.21C.080, the words "action", "decision", and "determination" mean substantive agency action including any accompanying procedural determinations under this chapter (except where the word "action" means "appeal" in RCW 43.21C.080(2)). The word "action" in this section and RCW 43.21C.080 does not mean a procedural determination by itself made under this chapter. The word "determination" includes any environmental document required by this chapter and state or local implementing rules. The word "agency" refers to any state or local unit of government. Except as provided in subsection (5) of this section, the word "appeal" refers to administrative, legislative, or judicial appeals.
     (9) The court in its discretion may award reasonable attorneys' fees of up to one thousand dollars in the aggregate to the prevailing party, including a governmental agency, on issues arising out of this chapter if the court makes specific findings that the legal position of a party is frivolous and without reasonable basis.

Sec. 10   RCW 43.21C.110 and 1997 c 429 s 47 are each amended to read as follows:
     It shall be the duty and function of the department of ecology:
     (1) To adopt and amend thereafter rules of interpretation and implementation of this chapter, including section 1 of this act, subject to the requirements of chapter 34.05 RCW, for the purpose of providing uniform rules and guidelines to all branches of government including state agencies, political subdivisions, public and municipal corporations, and counties. The proposed rules shall be subject to full public hearings requirements associated with rule promulgation. Suggestions for modifications of the proposed rules shall be considered on their merits, and the department shall have the authority and responsibility for full and appropriate independent promulgation and adoption of rules, assuring consistency with this chapter as amended and with the preservation of protections afforded by this chapter. The rule-making powers authorized in this section shall include, but shall not be limited to, the following phases of interpretation and implementation of this chapter:
     (a) Categories of governmental actions which are not to be considered as potential major actions significantly affecting the quality of the environment, including categories pertaining to applications for water right permits pursuant to chapters 90.03 and 90.44 RCW. The types of actions included as categorical exemptions in the rules shall be limited to those types which are not major actions significantly affecting the quality of the environment. The rules shall provide for certain circumstances where actions which potentially are categorically exempt require environmental review. An action that is categorically exempt under the rules adopted by the department may not be conditioned or denied under this chapter.
     (b) Rules for criteria and procedures applicable to the determination of when an act of a branch of government is a major action significantly affecting the quality of the environment for which a detailed statement is required to be prepared pursuant to RCW 43.21C.030.
     (c) Rules and procedures applicable to the preparation of detailed statements, endangered marine species reviews, and other environmental documents, including but not limited to rules for timing of environmental review, obtaining comments, data and other information, and providing for and determining areas of public participation which shall include the scope and review of draft environmental impact statements.
     (d) Scope of coverage and contents of detailed statements and endangered marine species reviews assuring that such statements and reviews are simple, uniform, and as short as practicable; statements are required to analyze only reasonable alternatives and probable adverse environmental impacts which are significant, and may analyze beneficial impacts.
     (e) Rules and procedures for public notification of actions taken and documents prepared.
     (f) Definition of terms relevant to the implementation of this chapter including the establishment of a list of elements of the environment. Analysis of environmental considerations under RCW 43.21C.030(2) may be required only for those subjects listed as elements of the environment (or portions thereof). The list of elements of the environment shall consist of the "natural" and "built" environment. The elements of the built environment shall consist of public services and utilities (such as water, sewer, schools, fire and police protection), transportation, environmental health (such as explosive materials and toxic waste), and land and shoreline use (including housing, and a description of the relationships with land use and shoreline plans and designations, including population).
     (g) Rules for determining the obligations and powers under this chapter of two or more branches of government involved in the same project significantly affecting the quality of the environment.
     (h) Methods to assure adequate public awareness of the preparation and issuance of detailed statements required by RCW 43.21C.030(2)(c) and endangered marine species reviews required under section 1 of this act.
     (i) To prepare rules for projects setting forth the time limits within which the governmental entity responsible for the action shall comply with the provisions of this chapter.
     (j) Rules for utilization of a detailed statement for more than one action and rules improving environmental analysis of nonproject proposals and encouraging better interagency coordination and integration between this chapter and other environmental laws.
     (k) Rules relating to actions which shall be exempt from the provisions of this chapter in situations of emergency.
     (l) Rules relating to the use of environmental documents in planning and decision making and the implementation of the substantive policies and requirements of this chapter, including procedures for appeals under this chapter.
     (m) Rules relating to the level of detail and other requirements of endangered marine species reviews required under section 1 of this act.
     (n) Rules and procedures that provide for the integration of environmental review with project review as provided in RCW 43.21C.240. The rules and procedures shall be jointly developed with the department of community, trade, and economic development and shall be applicable to the preparation of environmental documents for actions in counties, cities, and towns planning under RCW 36.70A.040. The rules and procedures shall also include procedures and criteria to analyze planned actions under RCW 43.21C.031(2) and revisions to the rules adopted under this section to ensure that they are compatible with the requirements and authorizations of chapter 347, Laws of 1995, as amended by chapter 429, Laws of 1997. Ordinances or procedures adopted by a county, city, or town to implement the provisions of chapter 347, Laws of 1995 prior to the effective date of rules adopted under this subsection (1)(((m))) (n) shall continue to be effective until the adoption of any new or revised ordinances or procedures that may be required. If any revisions are required as a result of rules adopted under this subsection (1)(((m))) (n), those revisions shall be made within the time limits specified in RCW 43.21C.120.
     (2) In exercising its powers, functions, and duties under this section, the department may:
     (a) Consult with the state agencies and with representatives of science, industry, agriculture, labor, conservation organizations, state and local governments, and other groups, as it deems advisable; and
     (b) Utilize, to the fullest extent possible, the services, facilities, and information (including statistical information) of public and private agencies, organizations, and individuals, in order to avoid duplication of effort and expense, overlap, or conflict with similar activities authorized by law and performed by established agencies.
     (3) Rules adopted pursuant to this section shall be subject to the review procedures of chapter 34.05 RCW.